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RESOLUTIONS 



OF 



VIRGINIA AKD KENTUCKY, 



PENNED BY 



MADISON AND JEFFERSON, 



ALIEN AJYD SEDITION LAWS; 



AND THE 



DEBATES AND PROCEEDINGS 



IN THE 



HOUSE OF DELEGATES OF VIRGINIA, 



ON THE SAME, IN DECEMBER 1798. 




t RICHMOND: 
ROBERT I. SMITH. 



1835. 



Printed by Samuel Shepherd. 






8^6 



PREFACE. 



The administration of Mr. John Adams was a dark day for the re- 
public. Then, alien and sedition acts were let loose upon us: the 
purity of the constitution itself was violated by the madness of party : 
and those rights which had been respectively reserved to the states 
and to the people, were exposed to the most fearful jeopardy by the 
usurpations of the federal government. 

But, the friends of the constitution did not "despair of the repub- 
lic." Though the liberty of speech and of the press were invaded; 
though the power and patronage of the government were exerted to 
intimidate or seduce the people; the republicans did not abandon the 
cause of their country. Their resistance continued with the crisis : 
the form of it only was varied. While Mr. Jefferson remained in the 
senate of the United States, and Mr. Gallatin in the house of repre- 
sentatives, most of their most able and active friends, in some of the 
states, retired from the walks of the general government, and retreated 
to the state legislatures; in which great citadels of the public liberty, 
they proposed to re-assert the true principles of the government. The 
republicans succeeded ; and the constitution was saved. 

Among the most memorable productions of those times, were the 
resolutions and reports, which were adopted by the legislatures of 
Kentucky and Virginia. These were penned by Jefferson and Madi- 
son. To Mr. Madison is due, the honor of having drafted the Vir- 
ginia resolutions of the 21st December, 1798; and that masterly vin- 
dication of them, which was adopted by the legislature of Virginia 
during the session of '99-1800 : a paper, which is familiarly known 
by the name of "Madison's Report" and which deserves to last as 
long as the constitution itself. 

The resolutions of Kentucky, were submitted to the legislature of 
that state, by Mr. John Breckenridge, and adopted by them on the 
10th November, 1798. They had the honor of being penned by the 
author of the declaration of American independence. 

Both these esteemed productions are scarce, and out of print. They 
are frequently asked for. They are again wanting, to re-establish 
the land marks of the constitution ; and to stay that flood of encroach- 
ment which threatens to sweep our country. The rights of the 
states and of the people, are again assailed in an alarming manner. 
Doctrines are preached in high places, which are directly at war 
with the principles of our government. The centripetal power is as- 
suming a new and fearful energy. Under the authority of great 
names, great errors are maintained. Is it not time, then, for the 
friends of truth to rally together, and to re-assert her principles? 
Where can we find these principles more clearly stated, or the argu- 
ments in their defence more powerfully developed, than in the cele- 
brated productions which the publisher of this pamphlet now lays 
before his readers? 

Richmond ( Va.) February, 1826. 



IN THE HOUSE OF DELEGATES. 

Monday, January, 20, 1800. 
Resolved, That five thousand copies of the report of the select 
committee, to whom were referred the answers of several states upon 
the resolutions of the last legislature, the said answers, and also, the 
instructions to the senators of this state, in the congress of the United 
States, together with the names of those who voted on each of those 
subjects, be printed without delay ; and that the executive be re- 
quested, as soon as may be, to distribute them equally, in such man- 
ner as they shall think best, among the good people of this common- 
wealth. 

Attest, 

WILLIAM WIRT, C. H. D. 
H. BROOKE, C. S. 



COMMUNICATIONS, &c. 



STATE OF DELAWARE. 

IN THE HOUSE OF REPRESENTATIVES, 

February 1, 1799. 

Resolved, By the senate and house of representatives of the 
state of Delaware, in general assembly met, that they consider the 
resolutions from the state of Virginia, as a very unjustifiable interfe- 
rence with the general government and constituted authorities of the 
United States, and of dangerous tendency, and therefore not a fit sub- 
ject for the further consideration of the general assembly. 

ISAAC DAVIS, Speaker of senate. 

STEPHEN LEWIS, Speaker of the 
house of representatives. 



Test 



John Fisher, c. s. 
John Caldwell, c. h. r. 

Resolved, That the above resolutions be signed by the speaker of 
senate, and by the speaker of the house of representatives ; and that 
the governor of this state be requested to forward the same to the go- 
vernor of the state of Virginia. 

JOHN FISHER, C. S. 
JOHN CALDWELL, C. H. R. 



STATE OF RHODE ISLAND 

AND 

PROVIDENCE PLANTATIONS. 

In General Assembly , Feb. A. D. 1799. 

Certain resolutions of the legislature of Virginia, passed on the 
twenty-first day of December last, being communicated to this assem- 
bly, 

1. Resolved, That in the opinion of this legislature, the second 
section of the third article of the constitution of the United States, 
in these words, to wit : The judicial power shall extend to all cases 
arising under the laws of the United States, vests in the federal 
courts exclusively, and in the supreme court of the United States, ulti- 
mately, the authority of deciding on the constitutionality of any act 
or law of the congress of the United States. 

2. Resolved, That for any state legislature to assume that authority, 
would be, 

1st. Blending together legislative and judicial powers. 

2d. Hazarding an interruption of the peace of the states by civil 
discord, in case of a diversity of opinions among the state legislatures; 
each state having, in that case, no resort for vindicating its own opi- 
nion, but to the strength of its own arm. 

3d. Submitting most important questions of law, to less competent 
tribunals ; and 

4th. An infraction of the constitution of the United States, ex- 
pressed in plain terms. 

3. Resolved, That although for the above reasons, this legislature, 
in their public capacity, do not feel themselves authorized to consider 
and decide on the constitutionality of the sedition and alien laws (so 
called :) Yet they are called upon by the exigency of this occasion, 
to declare, that in their private opinions, these laws are within the 
powers delegated to congress, and promotive of the welfare of the 
United States. 

4. Resolved, That the governor communicate these resolutions to 
the supreme executive of the state of Virginia, and at the same time, 
express to him, that this legislature cannot contemplate, without ex- 
treme concern and regret, the many evil and fatal consequences which 
may flow from the very unwarrantable resolutions aforesaid, of the 
legislature of Virginia passed on the twenty-first day of December 
last. 

A true copy, 

SAMUEL EDDY, Sec'y. 



COMMONWEALTH OF MASSACHUSETTS. 

IN SENATE, February 9, 1799. 

The legislature of Massachusetts having taken into serious con- 
sideration the resolutions of the state of Virginia, passed the 21st day 
of December last, and communicated by his excellency the governor, 
relative to certain supposed infractions of the constitution of the 
United States, by the government thereof, and being convinced that 
the federal constitution is calculated to promote the happiness, pros- 
perity and safety of the people of these United States, and to main- 
tain that union of the several states, so essential to the welfare of the 
whole ; and, being bound by solemn oath to support and defend that 
constitution, feel it unnecessary to make any professions of their at- 
tachment to it, or of their firm determination to support it against 
every aggression, foreign or domestic. 

But they deem it their duty solemnly to declare, that while they hold 
sacred the principle, that the consent of the people is the only pure 
source of just and legitimate power, they cannot admit the right of the 
state legislatures to denounce the administration of that government 
to which the people themselves, by a solemn compact, have exclusively 
committed their national concerns : That, although a liberal and en- 
lightened vigilance among the people is always to be cherished, yet an 
unreasonable jealousy of the men of their choice, and a recurrence 
to measures of extremity, upon groundless or trivial pretexts, have a 
strong tendency to destroy all rational liberty at home, and to deprive 
the United States of the most essential advantages in their relations 
abroad : That this legislature are persuaded, that the decision of all 
cases in law and equity, arising under the constitution of the United 
States, and the construction of all laws made in pursuance thereof, 
are exclusively vested by the people in the judicial courts of the United 
States. 

That the people in that solemn compact, which is declared to be the 
supreme law of the land, have not constituted the state legislatures the 
judges of the acts or measures of the federal government, but have 
confided to them the power of proposing such amendments of the con- 
stitution, as shall appear to them necessary to the interests, or con- 
formable to the wishes of the people whom they represent. 

That by this construction of the constitution, an amicable and dis- 
passionate remedy is pointed out for any evil which experience may 
prove to exist, and the peace and prosperity of the United States may 
be preserved without interruption. 

But, should the respectable state of Virginia persist in the assump- 
tion of the right to declare the acts of the national government un- 
constitutional, and should she oppose successfully her force and will 
to those of the nation, the constitution would be reduced to a mere 
cypher, to the form and pageantry of authority, without the energy of 
power. Every act of the federal government which thwarted the 
views or checked the ambitious projects of a particular state, or of its 
leading and influential members, would be the object of opposition 



8 

and of remonstrance ; while the people, convulsed and confused by 
the conflict between two hostile jurisdictions, enjoying the protection 
of neither, would be wearied into a submission to some bold leader, 
who would establish himself on the ruins of both. 

The legislature of Massachusetts, although they do not themselves 
claim the right, nor admit the authority, of any of the state govern- 
ments, to decide upon the constitutionality of the acts of the federal 
government, still, least their silence should be construed into disap- 
probation, or at best into a doubt of the constitutionality of the acts 
referred to by the state of Virginia; and, as the general assembly of 
Virginia has called for an expression of their sentiments, do explicitly 
declare, that they consider the acts of congress, commonly called " the 
alien and sedition acts," not only constitutional, but expedient and ne- 
cessary : That the former act respects a description of persons whose 
rights were not particularly contemplated in the constitution of the 
United States, who are entitled only to a temporary protection, while 
they yield a temporary allegiance : a protection, which ought to be 
withdrawn whenever they become " dangerous to the public safety," 
or are found guilty of " treasonable machinations" against the govern- 
ment : That congress having been especially entrusted by the people 
with the general defence of the nation, had not only the right, but 
were bound to protect it against internal as well as external foes. 

That the United States, at the time of passing the act concerning 
aliens, were threatened with actual invasion, had been driven by the 
unjust and ambitious conduct of the French government into warlike 
preparations, expensive and burthensome, and had then, within the 
bosom of the country, thousands of aliens, who, we doubt not, were 
ready to co-operate in any external attack. 

It cannot be seriously believed, that the United States should have 
waited till the poignard had in fact been plunged. The removal of 
aliens is the usual preliminary of hostility, and is justified by the inva- 
riable usages of nations. Actual hostility had unhappily long been 
experienced, and a formal declaration of it the government had reason 
daily to expect. The law, therefore, was just and salutary, and no 
officer could with so much propriety be entrusted with the execution 
of it, as the one in whom the constitution has reposed the executive 
power of the United States. 

The sedition act, so called, is, in the opinion of this legislature, 
equally defensible. The general assembly of Virginia, in their resolve 
under consideration, observe, that when that slate by its convention, 
ratified the federal constitution, it expressly declared, " That, among 
other essential rights, the liberty of conscience and of the press can- 
not be cancelled, abridged, restrained or modified by any authority of 
the United States," and from its extreme anxiety to guard these rights 
from every possible attack of sophistry or ambition, with other states, 
recommended an amendment for that purpose; which amendment was, 
in due time, annexed to the constitution ; but they did not surely ex- 
pect that the proceedings of their state convention were to explain the 
amendment adopted by the union. The words of that amendment, on 
this subject, are, " Congress shall make no law abridging the freedom 
of speech or of the press." 



The act complained of is no abridgment of the freedom of either. 
The genuine liberty of speech and the press, is the liberty to utter and 
publish the truth ; but the constitutional right of the citizen to utter 
and publish the truth, is not to be confounded with the licentiousness 
in speaking and writing, that is only employed in propagating false- 
hood and slander. This freedom of the press has been explicitly se- 
cured by most, if not all the state constitutions ; and of this provision 
there has been generally but one construction among enlightened men ; 
that it is a security for the rational use and not the abuse of the press; 
of which the courts of law, the juries and people will judge : this right 
is. not infringed, but confirmed and established by the late act of con- 
gress. 

By the constitution, the legislative, executive and judicial depart- 
ments of government are ordained and established ; and general enu- 
merated powers vested in them respectively, including those which are 
prohibited to the several states. Certain powers are granted in general 
terms by the people to their general government, for the purposes of 
their safety and protection. That government is not only empowered, 
but it is made their duty, to repel invasions and suppress insurrections; 
to guarantee to the several states a republican form of government; to 
protect each state against invasion, and, when applied to, against do- 
mestic violence; to hear and decide all cases in law and equity, arising 
under the constitution, and under any treaty or law made in pursuance 
thereof; and all cases of admiralty and maritime jurisdiction, and rela- 
ting to the law of nations. Whenever, therefore, it becomes necessary 
to effect any of the objects designated, it is perfectly consonant to all 
just rules of construction, to infer, that the usual means and powers 
necessary to the attainment of that object, are also granted : But the 
constitution has left no occasion to resort to implication for these pow- 
ers; it has made an express grant of them, in the eighth section of 
the first article, which ordains, " That congress shall have power to 
make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by the 
constitution in the government of the United States, or in any depart- 
ment or officer thereof." 

This constitution has established a supreme court of the United 
States, but has made no provision for its protection, even against such 
improper conduct in its presence, as might disturb its proceedings, un- 
less expressed in the section before recited. But as no statute has 
been passed on this subject, this protection is, and has been for nine 
years past, uniformly found in the application of the principles and 
usages of the common law. The same protection may unquestionably 
be afforded by a statute passed in virtue of the before mentioned sec- 
tion, as necessary and proper, for carrying into execution the powers 
vested in that department. A construction of the different parts of 
the constitution, perfectly just and fair, will, on analogous principles, 
extend protection and security against the offences in question, to the 
other departments of government, in discharge of their respective 
trusts. 

The president of the United States is bound by his oath, " to pre- 
serve, protect and defend the constitution," and it is expressly made 
2 



10 

his duty " to take care that the laws be faithfully executed ;" but this 
would be impracticable by any created being, if there could be no 
legal restraint of those scandalous misrepresentations of his measures 
and motives, which directly tend to rob him of the public confidence. 
And equally impotent would be every other public officer, if thus left 
to the mercy of the seditious. 

It is holden to be a truth most clear, that the important trusts 
before enumerated, cannot be discharged by the government to which 
they are committed, without the power to restrain or punish sedi- 
tious practices and unlawful combinations against itself, and to pro- 
tect the officers thereof from abusive misrepresentations. Had the 
constitution withheld this power, it would have made the govern- 
ment responsible for the effects, without any control over the causes 
which naturally produce them, and would have essentially failed of 
answering the great ends for which the people of the United States 
declare, in the first clause of that instrument, that they establish 
the same, viz : " To form a more perfect union, establish justice, 
insure domestic tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty to ourselves 
and posterity." 

Seditious practices and unlawful combinations against the federal 
government, or any officer thereof, in the performance of his duty, as 
well as licentiousness of speech and of the press, were punishable on 
the principles of common law in the courts of the United States, be- 
fore the act in question was passed. This act then is an amelioration 
of that law in favour of the party accused, as it mitigates the punish- 
ment which that authorizes, and admits of any investigation of pub- 
lic men and measures which is regulated by truth. It is not intended 
to protect men in office, only as they are agents of the people. Its 
object is to afford legal security to public offices and trusts created for 
the safety and happiness of the people, and therefore the security de- 
rived from it is for the benefit of the people and is their right. 

This construction of the constitution and of the existing law of the 
land, as well as the act complained of, the legislature of Massachu- 
setts most deliberately and firmly believe results from a just and full 
view of the several parts of that constitution ; and they consider that 
act to be wise and necessary, as an audacious and unprincipled spirit 
of falsehood and abuse had been too long unremittingly exerted for 
the purpose of perverting public opinion, and threatened to under- 
mine and destroy the whole fabric of the government. 

The legislature further declare, that in the foregoing sentiments 
they have expressed the general opinion of their constituents, who 
have not only acquiesced without complaint in those particular mea- 
sures of the federal government, but have given their explicit appro- 
bation by ^electing those men who voted for the adoption of them : 
Nor is it apprehended, that the citizens of this state will be accused 
of supineness or of an indifference to their constitutional rights ; for, 
while on the one hand, they regard with due vigilance the conduct of 
the government; on the other, their freedom, safety and happiness 
require, that they should defend that government and its constitutional 



11 

measures against the open or insidious attacks of any foe, whether 
foreign or domestic. 

And lastly, that the legislature of Massachusetts feel a strong con- 
viction, that the several United States are connected by a common 
interest, which ought to render their union indissoluble, and that this 
state will always co-operate with its confederate states, in rendering 
that union productive of mutual security, freedom and happiness. 
Sent down for concurrence. 

SAMUEL PHILIPS, President. 

In the house of representatives, Feb. 13, 1799. 
Read and concurred. 

EDWARD H. ROBBINS, Speaker. 

A true copy. 

Attest, JOHN AVERY, Secretary. 



STATE OF NEW YORK. 

In SeNATE, March 5, 1799. 

Whereas the people of the United States have established for 
themselves, a free and independent national government: And whereas 
it is essential to the existence of every government, that it have autho- 
rity to defend and preserve its constitutional powers inviolate, in as 
much as every infringement thereof tends to its subversion. And 
whereas the judicial power extends expressly to all cases of law and 
equity arising under the constitution and the laws of the United 1 
States, whereby the interference of the legislatures of the particular 
states in those cases is manifestly excluded. And whereas our peace, 
prosperity and happiness, eminently depend on the preservation of 
the Union, in order to which, a reasonable confidence in the consti- 
tuted authorities and chosen representatives of the people is indispen- 
sable. And whereas every measure calculated to weaken that con- 
fidence, has a tendency to destroy the usefulness of our public func- 
tionaries, and to excite jealousies equally hostile to rational liberty, 
and the principles of a good republican government. And whereas 
the senate not perceiving that the rights of the particular states have 
been violated, nor any unconstitutional powers assumed by the gene- 
ral government, cannot forbear to express the anxiety and regret with 
which they observe the inflammatory and pernicious sentiments and 
doctrines which are contained in the resolutions of the legislatures of 
Virginia and Kentucky ; sentiments and doctrines no less repugnant 
to the constitution of the United States, and the principles of their 
union, than destructive to the federal government, and unjust to those 
whom the people have elected to administer it : wherefore, 



12 

Resolved, That while the senate feel themselves constrained to bear 
unequivocal testimony against such sentiments and doctrines, they 
deem it a duty no less indispensable, explicitly to declare their incom- 
petency, as a branch of the legislature of this state, to supervise the 
acts of the general government. 

Resolved, That his excellency the governor be, and he is hereby 
requested to transmit a copy of the foregoing resolution to the execu- 
tives of the states of Virginia and Kentucky, to the end, that the 
same may be communicated to the legislatures thereof. 
A true copy, 

ABM. B. BAUCKER, Clerk 



STATE OF CONNECTICUT. 

At a general assembly of the state of Connecticut, holden at Hart- 
ford, in the said state, on the second Thursday of May, anno domini, 
1799, his excellency the governor having communicated to this assem- 
bly sundry resolutions of the legislature of Virginia, adopted in De- 
cember 1798, which relate to the measures of the general government, 
and the said resolutions having been considered, it is 

Resolved, That this assembly views with deep regret, and explicitly 
disavows, the principles contained in the aforesaid resolutions; and 
particularly the opposition to the " alien and sedition acts," acts, which 
the constitution authorized ; which the exigency of the country ren- 
dered necessary ; which the constituted authorities have enacted, and 
which merit the entire approbation of this assembly. — They therefore 
decidedly refuse to concur with the legislature of Virginia, in promo- 
ting any of the objects attempted in the aforesaid resolutions. 

And it is further resolved, that his excellency the governor be re- 
quested to transmit a copy of the foregoing resolution to the governor 
of Virginia, that it may be communicated to the legislature of that 
state. 

Passed in the house of representatives unanimously. 
Attest 

JOHN C. SMITH, Clerk. 

Concurred unanimously in the upper house. 
Teste 

SAMUEL WYLLYS, Sec'ry. 



13 

STATE OF NEW-HAMPSHIRE. 

In the House of Representatives, June 14, 1799. 

The committee, to take into consideration the resolutions of the ge- 
neral assembly of Virginia, dated December 21st, 1798 : also certain 
resolutions of the legislature of Kentucky, of the 10th November, 
1798, report as follows : 

The legislature of New-Hampshire having taken into consideration 
certain resolutions of the general assembly of Virginia, dated Decem- 
ber 21, 1798; also certain resolutions of the legislature of Kentucky, 
of the 10th of November, 1798. 

Resolved, That the legislature of New Hampshire unequivocally 
express a firm resolution to maintain and defend the constitution of 
the United States, and the constitution of this state, against every ag- 
gression, either foreign or domestic, and that they will support the 
government of the United States in all measures warranted by the 
former. 

That the state legislatures are not the proper tribunals to determine 
the constitutionality of the laws of the general government — that the 
duty of such decision is properly and exclusively confided to the judi- 
cial department. 

That if the legislature of New-Hampshire for mere speculative pur 
poses, were to express an opinion on the acts of the general govern- 
ment, commonly called " the alien and sedition bills," that opinion 
would unreservedly be, that those acts are constitutional, and in the 
present critical situation of our country, highly expedient. 

That the constitutionality and expediency of the acts aforesaid, have 
been very ably advocated and clearly demonstrated by many citizens 
of the United States, more especially by the minority of the general 
assembly of Virginia. The legislature of New-Hampshire therefore 
deem it unnecessary, by any train of arguments, to attempt further 
illustration of the propositions, the truth of which, it is confidently be- 
lieved, at this day, is very generally seen and acknowledged. 

Which report being read and considered, was unanimously received 
and accepted, one hundred and thirty-seven members being present. 
Sent up for concurrence. 

JOHN PRENTICE, Speaker. 

In senate, the same day, read and concurred unanimously. 

AMOS SHEPARD, President. 

Approved, June 15th, 1799. 

J. T. GILMAN, Governor. 
A true copy. 

Attest, 

JOSEPH PEARSON, Secretary. 



14 



STATE OF VERMONT. 

In the House of Representatives, \ 
October 30th, A. D. 1799. ) 

The house proceeded to take under their consideration, the resolu- 
tions of the general assembly of Virginia, relative to certain measures 
of the general government, transmitted to the legislature of this state, 
for their consideration : Whereupon, 

Resolved, That the general assembly of the state of Vermont do 
highly disapprove of the resolutions of the general assembly of Vir- 
ginia, as being unconstitutional in their nature, and dangerous in their 
tendency. It belongs not to state legislatures to decide on the consti- 
tutionality of laws made by the general government ; this power being 
exclusively vested in the judiciary courts of the union : That his ex- 
cellency the governor be requested to transmit a copy of this resolu- 
tion to the executive of Virginia, to be communicated to the general 
assembly of that state : And that the same be sent to the governor and 
council for their concurrence. 

SAMUEL C. CRAFTS, Clerk. 

In Council, October 30, 1799. 

Read and concurred unanimously. 

RICHARD WHITNEY, Secretary. 



INSTRUCTIONS. 



IN THE HOUSE OF DELEGATES. 

Saturday, January 11, 1800. 

Instructions from the general assembly of Virginia, to Stephens 
Thompson Mason and Wilson Gary Nicholas, senators from 
the state of Virginia, in the congress of the United States. 

The general assembly of the commonwealth of Virginia, though 
they entertain no doubt of your punctual performance of your duty, 
or of your faithful adherence to the great principles of constitutional 
law, and national policy, deem it incumbent on them, to communicate 
their opinions formed after the most mature deliberation on certain 
subjects essentially connected, as they solemnly believe, with the 
dearest rights, and most important interests of the people. 

The general assembly of Virginia will not now enter into a minute 
detail of all the facts and reasonings, which justify and require the 
instructions hereto subjoined. They cannot however forbear to re- 
mind you of some facts and observations, which they deem too expres- 
sive and important to be passed over in silence. They had indulged 
a hope, when there was a prospect of an accommodation of differ- 
ences with the French republic; or if even the existing mission 
should not terminate in that desirable event ; when all the belligerent 
nations of Europe, are too much occupied with European concerns, 
to meditate an invasion of the United States ; that the people would 
have been relieved from the evils and expenses incident to a military 
establishment, such as that authorized by the fifth congress : But it 
has been with the most painful emotions, that they have seen at the 
opening of the present session of congress a total disappointment in 
this just and pleasing expectation. The following intimation is con- 
tained in the speech of the president and approved in the answers of 
the two houses of congress. " The result of the mission to France 
is yet uncertain, but however it may terminate, a steady perseverance 
in a system of national defence, commensurate with our resources 
and the situation of the United States, is an obvious dictate of wis- 
dom." This recommendation if carried into practice would mate- 
rially lessen the advantages which would naturally result from an ac- 
commodation with the French republic, the most important of which 
would be a relief from the evils incident to a preparation for a rupture, 
and seems to establish a position never before officially advanced in 
the United States — that war in Europe is of itself a sufficient cause 



16 

for raising a standing army here, equal at least to the present military 
establishment. The experience of all ages has shewn that the respite 
from wars amongst the European nations is too short to justify dis- 
banding an existing army, and raising another during the intervals of 
peace, as a preparation for the next rupture ; and of course, if Euro- 
pean wars be a sufficient cause for raising military establishments 
here, a perpetual standing army would be the certain consequence of 
the recommendation. It cannot have escaped your notice, that the 
present war in Europe has not hitherto been deemed a sufficient 
cause for increasing the military establishment of the United States. 
So far from it, that during the existence of the war, the former estab- 
lishment was actually reduced. It is equally notorious that the only 
motive avowed for augmenting the military force, arose from the ap- 
prehension of an actual invasion from France ; and the same law 
which gave rise to the army, contains a provision for disbanding it, 
upon an accommodation with that republic. It cannot therefore but 
produce much concern that notwithstanding the existing prospect of 
accommodation, it should not only be considered as necessary to go 
on with the immense expense of such an establishment ; but that it 
should be deemed expedient to persevere in a system of defence com- 
mensurate with the resources and situation of the United States, even 
in the event of a successful termination of the pacific mission and a 
restoration of that state of things which preceded the crisis which 
was supposed by congress to require so great an augmentation of the 
military force. Although the constitution submits the right of raising 
armies to the discretion of congress, yet, it evidently contemplated 
the miliiia as the great bulwark of national defence, as well, to use 
the language of the constitution, to repel invasions, as to execute the 
laws of the union and suppress insurrections, and contemplated the 
right of raising armies for pressing and extraordinary emergencies. 
That the militia, except in such emergencies, is the only safe and 
adequate defence of the nation, is a political axiom hitherto held sa- 
cred in the United States. This is not only the obvious meaning of 
the constitution, but is still more strongly evidenced by the practical 
construction thereof under the former administration, as will appear 
by reviewing its proceedings for several successive years after the go- 
vernment was put into operation. Shortly after that event, the first 
president in his speech on the 8th of January, 1790, called the atten- 
tion of congress, to the great business of providing for the national 
defence in the following words : " A free people ought not only to be 
armed, but disciplined, to which end, an uniform and well digested 
plan is requisite." Acting under the same impression in his speech 
on the 25th of October, 1791, he again reminded congress of the 
militia, as the great depository of national force; speaking of the 
several objects referred to the consideration of congress, in referring 
to the militia, he observes: "The first is certainly an object of pri- 
mary importance, whether viewed in reference to the national secu- 
rity, or to the satisfaction of the community, or to the preservation 
of order ; in connection with this, the establishment of competent 
magazines and arsenals, and the fortifications naturally present them- 
selves to consideration. The safety of the United States under divine 



17 

protection, ought to rest on the basis of systematic and solid arrange- 
ments, exposed as little as possible to the hazard of fortuitous circum- 
stances." 

These recommendations being considered as relating exclusively to 
the militia, gave rise to a law more effectually to provide for the na- 
tional defence, by establishing an uniform militia throughout the 
United States. The president again recurring to the militia, as the 
safe and adequate defence of the nation, in his speech on the third of 
December, 1793, after speaking of the necessity of procuring arms 
and other military apparatus, emphatically observes : — "Nor can such 
arrangements with such objects, be exposed to the censure or jealousy 
of the warmest friends of republican government. They are incapa- 
ble of abuse in the hands of a militia, who ought to possess a pride in 
being the depository of the force of the republic, and may be trained 
to a degree of energy equal to every military exigency of the United 
States. But it is an enquiry which cannot be too solemnly pur- 
sued, whether the act has organized them so as to produce their full 
effect.' 1 And again, after the militia had demonstrated their efficacy 
in promptly marching to suppress an opposition to the laws in Penn- 
sylvania, on the 19th of November, 1794, in his speech the president 
observes: "The devising and establishing a well regulated militia, 
would be a genuine source of legislative honor, and a perfect title to 
public gratitude. I therefore entertain a hope, that the present ses- 
sion will not pass, without carrying to its full energy, the power of 
organizing, arming and disciplining the militia, and thus providing in 
the language of the constitution for calling them forth, to execute the 
laws of the union, suppress insurrections and repel invasions, as 
auxiliary to the state of our defence to which congress can never too 
frequently recur ; they will not omit to enquire whether the fortifica- 
tions which have been already licensed by law, be commensurate with 
our exigencies." These quotations require no illustration. They de- 
monstrate the principle contended for by the general assembly. Until 
the fifth congress this principle appears to have been duly respected. 
It was then materially varied by the substitution of a military estab- 
lishment, and by volunteer corps officered by the president and not by 
the states as the constitution requires that the militia should be, at the 
same time refusing to arm and equip any portion of the militia for the 
purposes of defence. 

The solicitude of the Virginia assembly for disbanding the army and 
reinstating the great constitutional principle of national defence, is 
greatly increased by referring to the enormous sums appropriated for 
supporting the army and navy. During the last year whilst money 
was procured at eight per centum, the appropriations for the support 
of the army alone, amounted' to 4,200,000 dollars — for fortifications, 
700,000 ; for the navy, 4,350,000 ; amounting in the whole to 9,250,000, 
exclusively of a great and unascertained sum of voluntary subscrip- 
tions for building and equipping vessels of war for which the sub- 
scribers receive an interest at six per centum. Thus imposing an an- 
nual debt or an annual tax upon the people of nearly two dollars for 
every individual throughout the United States, — to say nothing of the 
moral and political evils incident to a standing army and some of 
3 



\ 



18 

which are already developing themselves in the United States. Con- 
sidering the great distance of the United States from the powerful na- 
tions of Europe, the natural strength of the country, the spirit of the 
people, and the fate of one invading experiment made at a time and 
under circumstances infinitely unfavorable to the United States com- 
pared with their present situation, the general assembly are persuaded 
that as long as the nations of Europe continue at war with each other, 
no formidable invasion is to be apprehended at all, nor a sudden and 
formidable invasion at any time. Under this prospect of things the 
general assembly hold it as the dictate of true policy in the federal 
government to husband the public resources, to arrange and prepare 
the militia and to cultivate harmony by removing as far as possible, 
causes of jealousy and disapprobation. With these advantages it can- 
not be doubted that the United States would be in a better posture for 
facing any danger that can be seriously apprehended, than can be 
given them by the present military establishment accompanied with 
the anticipation of resources and the accumulations of public debts 
and taxes inseparable therefrom. 

In reviewing the measures adopted by the fifth congress, the general 
assembly cannot overlook the act suspending all commercial inter- 
course with the French dominions. However ready the general as- 
sembly and their constituents may be to bear with cheerfulness their 
full share of all necessary burdens, and to be among the foremost, in 
making all necessary sacrifices, they cannot be insensible, to some of 
the effects of this measure, which press with peculiar weight on them, 
at the same time that they must be in some degree felt, by every part 
of the United States. The article of tobacco, as you well know, con- 
stitutes a principal staple in the exports of this state. For several 
years past it has been an increasing one. France and the markets 
supplied, or that could be supplied through her, consume a very great 
proportion, of all the tobacco made in the United States. Great Bri- 
tain is supposed to consume not more than ten or twelve thousand 
hogsheads. The consequence of passing this prohibitory act cutting 
off one part of the continental market, in Europe, whilst the British 
fleet under the pretext of blockades had cut off another, has been to 
throw almost the whole, of this great and valuable staple, into the 
ports of Great Britain ; from which, as a belligerent country, re-expor- 
tation to other markets, must be made with great difficulty, risk, and 
charges, whilst the monopoly thus thrown into a single market has 
had the natural effect, of reducing the price of the article far below 
its usual standard, at the very time when within the prohibited 
markets it would have sold at a rate, still more above the usual prices. 
At the time of passing the law, the average price of tobacco in Vir- 
ginia was about ten dollars — at present the price is not more than 
about three dollars and thirty-three cents, and although other circum- 
stances, may possibly in some degree have contributed to produce this 
immense difference, yet it cannot be doubted that the act in question 
has been the principal cause. From this state of things it necessarily 
happens, that the merchants who were engaged in this branch of 
trade, have been, most extensively injured; the planter receives, not 
more than a third of the value of his labour, bestowed on the article 



19 

of tobacco ; the ability to pay the requisite taxes, is proportion ably 
diminished, and the revenue from imports, likely to be reduced, by 
the reduction of the value of the exports; On this consideration we 
think it proper to instruct you, to solicit a revision of the act afore- 
said, which we cannot, from any information, known to the public, 
perceive to be in any manner conducive in its operation to the national 
interest. Nor do we perceive, that any inconvenience can result, 
from such a measure, to the existing posture of things between the 
United States and the French republic. If it should have any influ- 
ence on the negociations depending, it will probably be of a concilia- 
tory, rather than of a disadvantageous nature : And should the nego- 
ciations not issue in the desired accommodation, this branch of the 
arrangements, that may then become proper, will be subject to the 
same discretion, which will decide on every other. 

With respect to the navy, it may be proper to remind you that 
whatever may be the proposed object of its establishment, or whatever 
may be the propect of temporary advantages resulting therefrom, it is 
demonstrated by the experience of all nations, who have ventured far 
into naval policy, that such prospect is ultimately delusive ; and that 
a navy has ever in practice been known more as an instrument of 
power, a source of expense, and an occasion of collisions and wars 
with other nations, than as an instrument of defence, of economy, or 
of protection to commerce. Nor is there any nation, in the judg- 
ment of the general assembly, to whose circumstances this remark is 
more applicable than to the United States. 

The general assembly of Virginia would consider themselves un- 
faithful to the trusts reposed in them, were they to remain silent, 
whilst a doctrine has been publicly advanced, novel in its principle, 
and tremendous in its consequences: That the common law of Eng- 
land is in force under the government of the United States. It is not 
at this time proposed to expose at large the monstrous pretensions re- 
sulting from the adoption of this principle. It ought never however 
to be forgotten, and can never be too often repeated, that it opens a 
new tribunal for the trial of crimes never contemplated by the federal 
compact. It opens a new code of sanguinary criminal law, both obso- 
lete and unknown, and either wholly rejected or essentially modified 
in almost all its parts by state institutions. It arrests or supercedes 
state jurisdiction, and innovates upon state laws. It subjects the citi- t 
zen to punishment according to the judiciary will, when he is left in 
ignorance of what this law enjoins as a duty, or prohibits as a crime. 
It assumes a range of jurisdiction for the federal courts, which defies 
limitation or definition. In short, it is believed that the advocates for 
the principle would themselves be lost in an attempt to apply it to the 
existing institutions of federal and state courts, by separating with 
precision their judiciary rights, and thus preventing the constant and 
mischievous interference of rival jurisdiction. 

With respect to the alien and sedition laws, it is at present only 
deemed necessary -to refer you to the various discussions upon those 
subjects which in the opinion of the general assembly of Virginia, 
clearly demonstrate the unconstitutionality of their principles; and 
experience has also sufficiently shewn, the mischiefs of their operation. 



20 

The general assembly of Virginia, confiding in your intelligence 
and zeal, trust that these principles will be, on all proper occasions, 
illustrated and supported by you, with that candor, moderation and 
firmness, without which the friends of liberty and truth, however sin- 
cere, cannot render essential service to the cause in which they are 
engaged. 

Deeply impressed with these opinions, the general assembly of Vir- 
ginia instruct the senators and request the representatives from this 
state in congress, to use their best efforts — 

1. To procure a reduction of the army, within the narrowest limits 
compatible with the protection of the forts, and the preservation of the 
arsenals maintained by the United States; unless such a measure shall 
be forbidden by information not known to the public. 

2. To prevent any augmentation of the navy, and to promote any 
proposition for reducing it, as circumstances will permit, within the 
narrowest limits compatible with the protection of the sea coasts, ports 
and harbors of the United States, and of consequence a proportionate 
reduction of the taxes. 

3. To oppose the passing of any law founded on, or recognizing 
the principle lately advanced, "that the common law of England is 
in force under the government of the United States;" excepting from 
such opposition, such particular parts of the common law, as may 
have a sanction from the constitution, so far as they are necessarily 
comprehended in the technical phrases which express the powers 
delegated to the government; — and excepting also such other parts 
thereof as may be adopted by congress, as necessary and proper for 
carrying into execution the powers expressly delegated. 

4. To procure a repeal of the acts of congress commonly called 
the alien and sedition acts. 

/ 



IN THE HOUSE OF DELEGATES. 
Saturday, January 11, 1800. 

The house, according to order, proceeded to consider the " instruc- 
tions from the general assembly of Virginia, to Stephens Thompson 
Mason and Wilson Gary Nicholas, senators from the state of Virginia, 
in the senate of the United States ;" and the first article of the said 
instructions being read, a motion was made to amend the same by 
adding thereto, " unless such a measure shall be forbidden by infor- 
mation not known to the public," and the same being read, a motion 
was made to amend the amendment, by substituting in lieu thereof, 
" as soon as an accommodation of the existing differences with the 
French republic may render such a reduction safe and expedient." 
And the question being put thereupon, 

It passed in the negative. 



21 

On the motion of Mr. Richard B. Lee, seconded by Mr. George 
K. Taylor, 

Ordered, That the names of the ayes and noes on the foregoing 
question be inserted in the journal. 

The names of those who voted in the affirmative are — Messrs. 
Bailey, Doake, Anderson, Blackburn, Hancock, Tate, A. White, Breck- 
enridge, Powell, R. B. Lee, Clarkson, Edmunds, Magill, Eskridge, J. 
Mathews, Cavendish, B. Robinson, Fisher, Simon, T. Lewis, Ruffner, 
Ashton, Burwell, Ball, J. Lewis, Noland, Cowan, Nelson, J. Evans, 
jun., Sumner, J. Taylor, Darby, Satchell, Biggs, Geo. K. Taylor, 
Cureton, Lawson, J. Robinson, Blow, W. Bailey, Garner, Turner, 
Crockett, Griffin, Copland, R. B. Taylor.— 46. 

And the names of those who voted in the negative are — Messrs. 
Wise, Woods, Giles, Chaffin, David S. Garland, Hare, Vance, Cald- 
well, Young, Otey, Fletcher, Charles Yancey, West, J. Taylor, Buck- 
ner, Reid, Tyler, Cheatham, T. A. Taylor, J. Roberts, M. Green, W. 
Daniel, Deane, Pegram, Goodwyn, Booker, Westwood, Daingerfield, 
Garnett, Hayden, Payne, Greer, Cooke, Hall, C. Garland, Pleasants, 
William Lee, Gaines, John B. Scott, Calmes, Higgins, Selden, Price, 
(of Henrico,) Starke, T. White, Jackson, Prunty, Martin, Redd, 
Driver, James Johnston, Tazewell, Lightfoot, Wallace, Pollard, Cocke, 
Callis, Yancey, Francis Eppes, Hill, Roebuck, Billups, Blakey, Robert 
B. Daniel, Craig, Howe, Riddick, Watkins, Claughton, Ball, Freeman 
Eppes, Grief Green, Madison, Barbour, M'Roberts, Wooding, Moseley, 
Woodson, Peter Johnston, Charles Scott, Pope, Thomas Mason, 
M'Koy, Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer, Moore, B. 
Harrison, Huston, M'Farlane, Dulany, Gatewood, Mercer, Stannard, 
Fox, Seward, Sebrell, Smith, Burnham, Meek, Dysart, Evans, Sheild, 
and Waller.— 108. 

The question being then put on the amendment first proposed, 

It passed in the affirmative. 

And then the question being put on the first article of the instruc- 
tions, as amended, 

It passed in the affirmative. 

On the motion of Mr. Jackson, seconded by Mr. Geo. K. Taylor, 

Ordered, That the names of the ayes and noes on the foregoing 
question be inserted in the journal. 

The names of those who voted in the affirmative are — Messrs. 
Woods, Giles, Chaffin, David S. Garland, Hare, Vance, Caldwell, 
Young, Hancock, Otey, Fletcher, C. Yancey, Boiling, West, James 
Taylor, Buckner, Reid, Price, (of Charlotte,) Tyler, Cheatham, T. A. 
Taylor, Roberts, M. Green, W. Daniel, Deane, Pegram, Goodwyn, 
Booker, Westwood, Daingerfield, Garnett, Hayden, Payne, Greer, 
Cooke, Hall, C. Garland, Pleasants, W. Lee, Gaines, J. B. Scott, Hig- 
gins, Selden, Price, (of Henrico,) Starke, T. White, Prunty, Fisher, 
Martin, Redd, Driver, J. Johnston, Tazewell, Jackson, Lightfoot, Pol- 
lard, Cocke, Callis, R. Yancey, Francis Eppes, Hill, Roebuck, Billups, 
Litchfield, Blakey, D. Daniel, Craig, Howe, Riddick, Watkins, 
Claughton, Ball, Freeman Eppes, G. Green, Madison, Barbour, M'Ro- 
berts, Wooding, Moseley, Woodson, Peter Johnston, C. Scott, Pope, 
T. Mason, M'Koy, Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer, 



22 

Moore, B. Harrison, Huston, M'FarJane, Dulaney, Gatewood, Mercer, 
Stannard, Fox, Seward, Sebrell, Burnham, Meek, Dysart, John Evans, 
Sheild, and Waller.— 108. 

And the names of those who voted in the negative are — Messrs. 
Wise, T. Bailey, Doake, Anderson, Blackburn, Tate, A. White, 
Breckenridge, Miller, J. F. Powell, R. B. Lee, Clarkson, Magill, Esk- 
ridge, Cavendish, Thomas Lewis, Ruffner, Wallace, Ashton, Burwell, 
Joseph Lewis, Noland, Cowan, Nelson, Evans, jun. T. Wilson, Sum- 
ner, James Taylor, Darby, Satchell, Biggs, G. K. Taylor, Cureton, 
Lawson, J. Robinson, Blow, W. Bailey, Smith, Garner, Turner Grif- 
fin, Copland, R. B. Taylor.— 42. 

The second article of the instructions being then read, a motion 
was made to amend the same, by striking out the whole of the said 
article from the third word, and substituting in lieu of the part so 
struck out, " unnecessary augmentation of the navy, and to promote 
any proposition for confining it within the narrowest limits compatible 
with the protection of the sea coasts, ports and harbours, and of the 
commerce of the United States ;" and the question being put thereon, 

It passed in the negative. 

On the motion of Mr. George K. Taylor, seconded by Mr. Cureton, 

Ordered, That the names of the ayes and noes on the foregoing 
question be inserted in the journal. 

The names of those who voted in the affirmative are — Messrs. Wise, 
T. Bailey, Doake, Anderson, Blackburn, Hancock, Otey, Alexander 
White, Tate, Breckenridge, Miller, West, J. F. Powell, Booker, West- 
wood, Richard B. Lee, Clarkson, Edmunds, Magill, Eskridge, John 
Matthews, Cavendish, B. Robinson, Fisher, Simon, T. Lewis, Ruffner, 
Wallace, Ashton, Pollard, Burwell, Ball, Joseph Lewis, jun., Noland, 
Cowan, Nelson, John Evans, jun., T. Wilson, Sumner, James Taylor, 
Darby, Satchell, Biggs, George K. Taylor, Cureton, Lawson, James 
Robinson, Blow, William Bailey, Garner, Turner, Griffin, Copland, 
and Robert B. Taylor. — 54. 

And the names of those who voted in the negative are — Messrs. 
Woods, Giles, Chaffin, D. S. Garland, Hare, Vance, Caldwell, Young, 
Fletcher, C. Yancey, Boiling, John Taylor, Buckner, Price, (of Char- 
lotte,) Tyler, Cheatham, T. A. Taylor, Roberts, Green, W. Daniel, 
Deane, Pegram, Goodwyn, Daingerfield, Garnett, Hayden, Payne, 
Greer, Hall, C. Garland, Pleasants, W. Lee, Gaines, J. B. Scott, How- 
son, Calmes, Higgins, Seldon, Price, (of Henrico,) Starke, T. White, 
Jackson, Prunty, Martin, Redd, Driver, J. Johnston, Tazewell, Light- 
foot, Cocke, Callis, R. Yancey, F. Eppes, Hill, Roebuck, Billups, 
Litchfield, Blakey, R. B. Daniel, Craig, Howe, Riddick, Watkins, 
Claughton, Wm. Ball, Freeman Eppes, G. Green, Madison, Barbour, 
M'Roberts, Woodings, Moseley, Woodson, Peter Johnston, C. Scott, 
Pope, T. Mason, M'Koy, Hull, Rentfro, Haddan, Barnes, M'Carty, 
Bowyer, Moore, B. Harrison, Huston, Cockrell, M'Farlane, Dulaney, 
Gatewood, Mercer, Stannard, Fox, Seward, Sebrell, Smith, Burnham, 
Meek, Dysart, Evans, Shield, and Waller. — 103. 

A motion was then made to amend the said article, by inserting 
after the word " it," in the first line, " as circumstances will permit." 

It passed in the affirmative. 



23 

The third article of the instructions being then read, a motion was 
made to amend it by the following addition : " excepting from such 
opposition such particular parts of the common law as may have a 
sanction from the constitution, so far as they are necessarily compre- 
hended in the technical phrases, which express the powers delegated 
to the government : — and excepting also, such other parts thereof as 
may be adopted as necessary and proper for carrying into execution 
the powers expressly delegated." — And the question being put there- 
upon, 

It passed in the affirmative. 

On the motion of Mr. Cureton, seconded by Mr. Breckenridge, 

Ordered, That the names of the ayes and noes on the foregoing 
question be inserted in the journal. 

The names of those who voted in the affirmative are — Messrs. Wise, 
T. Bailey, Woods, Giles, Chaffin, D. S. Garland, Hare, Doake, Ander- 
son, Blackburn, Vance, Caldwell, Young, Hancock, Otey, Tate, A. 
White, Breckenridge, Miller, Fletcher, C. Yancey, Boiling, West, 
Powell, John Taylor, Buckner, Reid, Price, (of Charlotte,) Tyler, 
Cheatham, T. A. Taylor, Roberts, M. Green, W. Daniel, Deanej Pe- 
gram, Goodwyn, Booker, Westwood, Daingerfield, Garnett, R. B. Lee, 
Clarkson, Edmonds, J. Hayden, Payne, Magill, Eskridge, Greer, 
Cooke, Hall, C. Garland, Pleasants, W. Lee, Gaines, Cavendish, B. 
Robinson, J. B. Scott, Howson, Calmes, Higgins, Selden, Price, (of 
Henrico,) Starke, T. White, Prunty, Fisher, Simon, Martin, Redd, 
Driver, J. Johnston, Tazewell, Lightfoot, T. Lewis, Ruffner, Wallace, 
Ashton, Pollard, Burwell, Ball, J. Lewis, Nol and, Callis, R. Yancey, 
Francis Eppes, Cowan, Nelson, Hill, Billups, Litchfield, Blakey, R. 
Daniel, Evans, jr., T. Wilson, Craig, Howe, Riddick, Sumner, Wat- 
kins, James Taylor, Darby, Satchell, Claughton, Ball, Freeman 
Eppes, G. Green, Biggs, Madison, M'Roberts, Wooding, Moseley, 
Woodson, C. Scott, Pope, G. K. Taylor, Cureton, T. Mason, Lawson, 
James Robinson, M'Koy, Hull, Rentfro, Barnes, M'Carty, Bowyer, 
Moore, B. Harrison, Huston, M'Farlane, Dulany, Gatewood, Blow, 
William Bailey, Mercer, Stannard, Fox, Seward, Sebrell, Smith, Burn- 
ham, Garner, Turner, Meek, Dysart, Shield, Griffin, Waller and R. 
B. Taylor.— 149. 

And the names of those who voted in the negative are 

And the question being then put on the article of instruction as 
amended, 

It passed in the affirmative. 

The fourth article of the instructions was then read, and the ques- 
tion being put upon the passage thereof, 

It passed in the affirmative. 

That part of the instructions which relates to the act of congress 
concerning the suspension of intercourse with France and her depen- 
dencies was then read, and the question being put on the passage 
thereof, 

It passed in the affirmative. 

The question being then put, that the instructions as amended, do 
pass, 

They passed in the affirmative. 



24 

On the motion of Mr. Jackson, seconded by Mr. Bailey, 

Ordered, That the names of the ayes and noes on the foregoing 
question be inserted in the journal. 

The names of those who voted in the affirmative are — Messrs. Woods, 
Giles, Chaffin, David S. Garland, Hare, Vance, Caldwell, Young, 
Fletcher, Charles Yancey, J. Taylor, Buckner, Reid, Price, (of Char- 
lotte,) Tyler, Cheatham, Thomas A. Taylor, Roberts, Green, Wm. 
Daniel, Dearie, Pegram, Goodwyn, Booker, Westwood, Daingerfield, 
Garnett, Hayden, Payne, Greer, Cooke, Hall, Christopher Garland, 
Pleasants, William Lee, Gaines, J. B. Scott, Howson, Calmes, Hig- 
gins, Selden, Price, (of Henrico,) Starke, Thos. White, Jackson, 
Prunty, Martin, Redd, Driver, James Johnston, Tazewell, Lightfoot, 
Cocke, Callis, R. Yancey, Francis Eppes, Hill, Roebuck, Billups, 
Litchfield, Blakey, Robert B. Daniel, Craig, Howe, Riddick, Wat- 
kins, Claughton, J. Ball, F. Eppes, G. Green, Madison, Barbour, 
M'Roberts, Wooding, Moseley, Woodson, Charles Scott, Pope, M'Koy, 
Hull, Rentfro, Haddan, Barnes, M'Carty, Bowyer, Moore, B. Harri- 
son, Huston, Cockrell, M'Farlane, Dulaney, Gatewood, Mercer, Stan- 
nard, Fox, Seward, Sebrell, Burnham, Meek, Dysart, Sheild and 
Waller.— 102. 

The names of those who voted in the negative are — Messrs. Wise, 
Thomas Bailey, Doake, Anderson, Blackburn, Hancock, Otey, Tate, 
A. White, Breckenridge, Miller, West, Powell, R. B. Lee, Clarkson, 
Edmonds, Magill, Eskridge, Cavendish, B. Robinson, Fisher, Simon, 
T. Lewis, Ruffher, Wallace, Ashton, N. Burnwell, J. Ball, J. Lewis, 
jun., Noland, Cowan, Evans, T. Wilson, Sumner, James Taylor, 
Darby, Satchell, Biggs, G. K. Taylor, Cureton, Lawson, J. Robinson, 
Blow, William Bailey, Garner, Turner, Griffin, Copland and R. B. 
Taylor.— 49. 



VIRGINIA. 



HOUSE OF DELEGATES 



REPORT 



Of the committee to whom were referred the communications of vari- 
ous states relative to the resolutions of the last general assembly of 
this state, concerning the alien and sedition laws. 

Whatever room might be found in the proceedings of some of the 
states who have disapproved of the resolutions of the general assem- 
bly of this commonwealth, passed on the 21st day of December, 1798, 
for painful remarks on the spirit and manner of those proceedings, it 
appears to the committee most consistent with the duty as well as dig- 
nity of the general assembly, to hasten an oblivion of every circum- 
stance which might be construed into a diminution of mutual respect, 
confidence and affection, among the members of the union. 

The committee have deemed it a more useful task, to revise with a 
critical eye, the resolutions which have met with this disapprobation ; 
to examine fully the several objections and arguments which have ap- 
peared against them ; and to enquire whether there be any errors of 
fact, of principle, or of reasoning, which the candor of the general 
assembly ought to acknowledge and correct. 

The first of the resolutions is in the words following : 

Resolved, That the general assembly of Virginia doth unequivo- 
cally express a firm resolution to maintain and defend the constitution 
of the United States, and the constitution of this state, against every 
aggression, either foreign or domestic, and that they will support the 
government of the United States in all measures warranted by the 
former. 

No unfavorable comment can have been made on the sentiments 
here expressed. To maintain and defend the constitution of the 
United States, and of their own state, against every aggression, both 
foreign and domestic, and to support the government of the United 
States in all measures warranted by their constitution, are duties 
which . the general assembly ought always to feel, and to which, on 
such an occasion, it was evidently proper to express their sincere and 
firm adherence. 

In their next resolution — The general assembly most solemnly de- 
clares a warm attachment to the union of the states, to maintain 
4 



26 

which it pledges all its powers ; and that, for this end, it is their 
duty to watch over and oppose every infraction of those principles, 
which constitute the only basis of that union, because a faithful ob- 
servance of them can alone secure its existence and the public happi- 
ness. 

The observation just made is equally applicable to this solemn de- 
claration, of warm attachment to the union, and this solemn pledge 
to maintain it; nor can any question arise among enlightened friends 
of the union, as to the duty of watching over and opposing every in- 
fraction of those principles which constitute its basis, and a faithful 
observance of which can alone secure its existence, and the public 
happiness thereon depending. 

The third resolution is in the words following: 
That this assembly doth explicitly and peremptorily declare, that it 
vietvs the powers of the federal government, as resulting from the 
compact, to which the states are parties, as limited by the plain sense 
and intention of the instrument constituting that compact ; as no far- 
ther valid than they are authorized by the grants enumerated in that 
compact ; and that in case of a deliberate, palpable and dangerous 
exercise of other powers, not granted by the said compact, the states 
who are parties thereto, have the right, and are in duty bound, to in- 
terpose for arresting the progress of the evil, and for maintaining 
within their respective limits, the authorities, rights and liberties ap- 
pertaining to them. 

On this resolution, the committee have bestowed all the attention 
which its importance merits : They have scanned it not merely with 
a strict, but with a severe eye : and they feel confidence in pronounc- 
ing, that, in its just and fair construction, it is unexceptionably true 
in its several positions, as well as constitutional and conclusive in its 
inferences. 

The resolution declares, first, that " it views the powers of the 
federal government, as resulting from the compact to which the states 
are parties ;" in other words, that the federal powers are derived from 
the constitution, and that the constitution is a compact to which the 
states are parties. 

Clear as the position must seem, that the federal powers are derived 
from the constitution, and from that alone, the committee are not un- 
apprised of a late doctrine, which opens another source of federal 
powers, not less extensive and important, than it is new and unex- 
pected. The examination of this doctrine will be most conveniently 
connected, with a review of a succeeding resolution. The committee 
satisfy themselves here with briefly remarking, that in all the cotem- 
porary discussions and comments which the constitution underwent, 
it was constantly justified and recommended, on the ground, that the 
powers not given to the government, were withheld from it; and that, 
if any doubt could have existed on this subject, under the original 
text of the constitution, it is removed, as far as words could remove 
it, by the 12th amendment, now a part of the constitution, which ex- 
pressly declares, " that the powers not delegated to the United States, 
by the constitution, nor prohibited by it to the states, are reserved to 
the states respectively, or to the people." 



27 

The other position involved in this branch of the resolution, namely, 
" that the states are parties to the constitution or compact," is, in the 
judgment of the committee, equally free from objection. It is indeed 
true, that the term " states," is sometimes used in a vague sense, and 
sometimes in different senses, according to the subject to which it is 
applied. Thus, it sometimes means the separate sections of territory 
occupied by the political societies within each ; sometimes the particu- 
lar governments, established by those societies; sometimes those so- 
cieties as organized into those particular governments; and, lastly, it 
means the people composing those political societies, in their highest 
sovereign capacity. Although it might be wished that the perfection 
of language admitted less diversity in the signification of the same 
words, yet little inconveniency is produced by it, where the true sense 
can be collected with certainty from the different applications. In 
the present instance, whatever different constructions of the term 
" stales," in the resolution, may have been entertained, all will at least 
concur in that last mentioned ; because, in that sense, the constitution 
was submitted to the " states :" in that sense the " states" ratified it : 
and, in that sense of the term "states," they are consequently parties 
to the compact, from which the powers of the federal government re- 
sult. 

The next position is, that the general assembly views the powers of 
the federal government, "as limited by the plain sense and intention 
of the instrument constituting that compact," and " as no farther valid 
than they are authorized by the grants therein enumerated." It does 
not seem possible, that any just objection can lie against either of 
these clauses. The first amounts merely to a declaration, that the 
compact ought to have the interpretation plainly intended by the par- 
ties to it; the other to a declaration, that it ought to have the execu- 
tion and effect intended by them. If the powers granted, be valid, it 
is solely because they are granted : and, if the granted powers are 
valid, because granted, all other powers not granted, must not be 
valid. 

The resolution, having taken this view of the federal compact, pro- 
ceeds to infer, " that, in case of a deliberate, palpable and dangerous 
exercise of other powers, not granted by the said compact, the states, 
who are parties thereto, have the right and are in duty bound to inter- 
pose for arresting the progress of the evil, and for maintaining within 
their respective limits, the authorities, rights and liberties appertaining 
to them." 

It appears to your committee to be a plain principle, founded in 
common sense, illustrated by common practice, and essential to the 
nature of compacts, that, where resort can be had to no tribunal, 
superior to the authority of the parties, the parties themselves must be 
the rightful judges in the last resort, whether the bargain made has 
been pursued or violated. The constitution of the United States was 
formed by the sanction of the states, given by each in its sovereign 
capacity. It adds to the stability and dignity, as well as to the autho- 
rity of the constitution, that it rests on this legitimate and solid foun- 
dation. The states, then, being the parties to the constitutional com- 
pact, and in their sovereign capacity, it follows of necessity, that there 



28 

can be no tribunal above their authority, to decide in the last resort, 
whether the compact made by them be violated ; and, consequently, 
that, as the parties to it, they must themselves decide, in the last re-, 
sort, such questions as may be of sufficient magnitude to require their 
interposition. 

It does not follow, however, that because the states, as sovereign 
parties to their constitutional compact, must ultimately decide whether 
it has been violated, that such a decision ought to be interposed, either 
in a hasty manner, or on doubtful and inferior occasions. Even in 
the case of ordinary conventions between different nations, where, by 
the strict rule of interpretation, a breach of a part may be deemed a 
breach of the whole, every part being deemed a condition of every 
other part, and of the whole, it is always laid down that the breach 
must be both wilful and material to justify an application of the rule. 
But in the case of an intimate and constitutional union, like that of 
the United States, it is evident that the interposition of the parties, in 
their sovereign capacity can be called for by occasions only, deeply 
and essentially affecting the vital principles of their political system. 

The resolution has accordingly guarded against any misapprehen- 
sion of its object, by expressly requiring for such an interposition, 
" the case of a deliberate, palpable and dangerous breach of the con- 
stitution, by the exercise of powers not granted by it? It must be a 
case, not of a light and transient nature, but of a nature dangerous 
to the great purposes for which the constitution was established. It 
must be a case, moreover, not obscure or doubtful in its construction, 
but plain and palpable. Lastly, it must be a case not resulting from 
a partial consideration, or hasty determination; but a case stampt 
with a final consideration and deliberate adherence. It is not neces- 
sary, because the resolution does not require, that the question should 
be discussed, how far the exercise of any particular power, ungranted 
by the constitution, would justify the interposition of the parties ot 
it. As cases might easily be stated, which none would contend ought 
to fall within that description ; cases, on the other hand, might, with 
equal ease, be stated, so flagrant and so fatal, as to unite every opinion 
in placing them within that description. 

But the resolution has done more than guard against misconstruc- 
tion, by expressly referring to cases of a deliberate, palpable and dan- 
gerous nature. It specifies the object of the interposition which it 
contemplates, to be solely that of arresting the progress of the evil 
of usurpation, and of maintaining the authorities, rights and liberties 
appertaining to the states, as parties to the constitution. 

From this view of the resolution, it would seem inconceivable that 
it can incur any just disapprobation from those, who laying aside all 
momentary impressions, and recollecting the genuine source and ob- 
ject of the federal constitution, shall candidly and accurately interpret 
the meaning of the general assembly. If the deliberate exercise of 
dangerous powers, palpably withheld by the constitution, could not 
justify the parties to it, in interposing even so far as to arrest the pro- 
gress of the evil, and thereby to preserve the constitution itself, as 
well as to provide for the safety of the parties to it, there would be 
an end to all relief from usurped power, and a direct subversion of 



29 

the rights specified or recognized under all the state constitutions, as 
well as a plain denial of the fundamental principle on which our in- 
dependence itself was declared. 

But it is objected that the judicial authority is to be regarded as the 
sole expositor of the constitution, in the last resort; and it may be 
asked for what reason, the declaration by the general assembly, sup- 
posing it to be theoretically true, could be required at the present day 
and in so solemn a manner. 

On this objection it might be observed, first, that there may be in- 
stances of usurped power, which the forms of the constitution would 
never draw within the control of the judicial department : secondly, 
that if the decision of the judiciary be raised above the authority of 
the sovereign parties to the constitution, the decisions of the other de- 
partments, not carried by the forms of the constitution before the ju- 
diciary, must be equally authoritative and final with the decisions of 
that department. But the proper answer to the objection is, that the 
resolution of the general assembly relates to those great and extraor- 
dinary cases, in which all the forms of the constitution may prove in- 
effectual against infractions dangerous to the essential rights of the 
parties to it. The resolution supposes that dangerous powers, not 
delegated, may not only be usurped and executed by the other depart- 
ments, but that the judicial department also may exercise or sanction 
dangerous powers beyond the grant of the constitution ,• and conse- 
quently, that the ultimate right of the parties to the constitution, to 
judge whether the compact has been dangerously violated, must ex- 
tend to violations by one delegated authority, as well as by another ; 
by the judiciary, as well as by the executive, or the legislature. 

However true, therefore, it may be, that the judicial department, is, 
in all questions submitted to it by the forms of the constitution, to de- 
cide in the last resort, this resort must necessarily be deemed the last 
in relation to the authorities of the other departments of the govern- 
ment ; not in relation to the rights of the parties to the constitutional 
compact, from which the judicial as well as the other departments 
hold their delegated trusts. On any other hypothesis, the delegation 
of judicial- power would annul the authority delegating it; and the 
concurrence of this department with the others in usurped powers, 
might subvert for ever, and beyond the possible reach of any rightful 
remedy, the very constitution, which all were instituted to preserve. 

The truth declared in the resolution being established, the expe- 
diency of making the declaration at the present day, may safely be 
left to the temperate consideration and candid judgment of the Ameri- 
can public. It will be remembered, that a frequent recurrence to 
fundamental principles, is solemnly enjoined by most of the state con- 
stitutions, and particularly by our own, as a necessary safeguard 
against the danger of degeneracy to which republics are liable, as 
well as other governments, though in a less degree than others. And 
a fair comparison of the political doctrines not unfrequent a$ the pre- 
sent day, with those which characterized the epoch of our revolution, 
and which form the basis of our republican constitutions, will best de- 
termine whether the declaratory recurrence here made to those prin- 
ciples, ought to be viewed as unseasonable and improper, or as a vigi- 



30 

lant discharge of an important duty. The authority of constitutions 
over governments, and of the sovereignty of the people over constitu- 
tions, are truths which are at all times necessary to be kept in mind ; 
and at no time perhaps more necessary than at the present. 

The fourth resolution stands as follows : 

That the general assembly doth also express its deep regret , that a 
spirit has in sundry instances, been manifested by the federal govern- 
ment, to enlarge its powers by forced constructions of the constitu- 
tional charter which defines them ; and that indications have appeared 
of a design to expound certain general phrases, {which, having been 
copied from the very limited, grant of powers in the former articles of 
confederation, were the less liable to be misconstrued) so as to destroy 
the meaning and effect of the particular enumeration which necessarily 
explains, and limits the general phrases ; and so as to consolidate the 
states by degrees, into one sovereignty, the obvious tendency and inevi- 
table result of which would be, to transform the present republican 
system of the United States, into an absolute, or at best a mixed mo- 
narchy. 

The first question here to be considered is, whether a spirit has in 
sundry instances been manifested by the federal government to en- 
large its powers by forced constructions of the constitutional charter. 

The general assembly having declared their opinion merely by re- 
gretting in general terms that forced constructions for enlarging the 
federal powers have taken place, it does not appear to the committee 
necessary to go into a specification of every instance to which the re- 
solution may allude. The alien and sedition acts being particularly 
named in a succeeding resolution, are of course to be understood as 
included in the allusion. Omitting others which have less occupied 
public attention, or been less extensively regarded as unconstitutional, 
the resolution may be presumed to refer particularly to the bank law, 
which from the circumstances of its passage, as well as the latitude of 
construction on which it is founded, strikes the attention with singular 
force ; and the carriage tax, distinguished also by circumstances in its 
history having a similar tendency. Those instances alone, if resulting 
from forced construction and calculated to enlarge the powers of the 
federal government, as the committee cannot but conceive to be the 
case, sufficiently warrant this part of the resolution. The committee 
have not thought it incumbent on them to extend their attention to 
laws which have been objected to, rather as varying the constitutional 
distribution of powers in the federal government, than as an absolute 
enlargement of them ; because instances of this sort, however im- 
portant in their principles and tendencies, do not appear to fall strictly 
within the text under review. 

The other questions presenting themselves, are — 1. Whether indi- 
cations have appeared of a design to expound certain general phrases 
copied from the " articles of confederation" so as to destroy the effect 
of the particular enumeration explaining and limiting their meaning. 
2. Whether this exposition would by degrees consolidate the states 
into one sovereignty. 3. Whether the tendency and result of this 
consolidation would be to transform the republican system of the 
United States into a monarchy. 



31 

1. The general phrases here meant must be those "of providing for 
the common defence and general welfare." 

In the " articles of confederation," the phrases are used as follows, 
in art. VIII. " All charges of war, and all other expenses that shall 
be incurred for the common defence and general welfare, and allowed 
by the United States in congress assembled, shall be defrayed out of a 
common treasury, which shall be supplied by the several states, in pro- 
portion to the value of all land within each state, granted to, or sur- 
veyed for any person, as such land and the buildings and improve- 
ments thereon shall be estimated, according to such mode as the United 
States in congress assembled, shall from time to time direct and ap- 
point." 

In the existing constitution, they make the following part of sec. 8. 
" The congress shall have power, to lay and collect taxes, duties, im- 
posts and excises to pay the debts, and provide for the common de- 
fence and general welfare of the United States." 

This similarity in the use of these phrases in the two great federal 
charters, might well be considered, as rendering their meaning less 
liable to be misconstrued in the latter; because it will scarcely be 
said, that in the former they were ever understood to be either a ge- 
neral grant of power, or to authorize the requisition or application of 
money by the old congress to the common defence and general wel- 
fare, except in the cases afterwards enumerated, which explained and 
limited their meaning ; and if such was the limited meaning attached 
to these phrases in the very instrument revised and re-modelled by the 
present constitution, it can never be supposed that when copied into 
this constitution, a different meaning ought to be attached to them. 

That, notwithstanding this remarkable security against misconstruc- 
tion, a design has been indicated to expound these phrases in the con- 
stitution, so as to destroy the effect of the particular enumeration of 
powers by which it explains and limits them, must have fallen under 
the observation of those who have attended to the course of public 
transactions. Not to multiply proofs on this subject, it will suffice to 
refer to the debates of the federal legislature, in which arguments 
have on different occasions been drawn, with apparent effect, from 
these phrases, in their indefinite meaning. 

To these indications might be added, without looking farther, the 
official report on manufactures, by the late secretary of the treasury, 
made on the 5th of December, 1791 ; and the report of a committee 
of congress, in January, 1797, on the promotion of agriculture. In 
the first of these it is expressly contended to belong " to the discre- 
tion of the national legislature to pronounce upon the objects which 
concern the general welfare, and for which, under that description, an 
appropriation of money is requisite and proper. And there seems to 
be no room for a doubt, that whatever concerns the general interests 

Of LEARNING, of AGRICULTURE, of MANUFACTURES, and of COMMERCE, 

are within the sphere of the national councils, as far as regards an 
application of money." The latter report assumes the same latitude 
of power in the national councils, and applies it to the encouragement 
of agriculture, by means of a society to be established at the seat of 
government. Although neither of these reports may have received 



32 

the sanction of a law carrying it into effect ; yet, on the other hand, 
the extraordinary doctrine contained in both, has passed without the 
slightest positive mark of disapprobation from the authority to which 
it was addressed. 

Now, whether the phrases in question be construed to authorize 
every measure relating to the common defence and general welfare, as 
contended by some ; or every measure only in which there might be 
an application of money, as suggested by the caution of others ; the 
effect must substantially be the same, in destroying the import and 
force of the particular enumeration of powers which follow these ge- 
neral phrases in the constitution. For, it is evident, that there is not 
a single power whatever, which may not have some reference to the 
common defence, or the general welfare ; nor a power of any magni- 
tude, which, in its exercise, does not involve or admit an application 
of money. The government, therefore, which possesses power in 
either one or other of these extents, is a government without the limi- 
tations formed by a particular enumeration of powers ; and conse- 
quently, the meaning and effect of this particular enumeration, is de- 
stroyed by the exposition given to these general phrases. 

This conclusion will not be affected by an attempt to qualify the 
power over the " general welfare," by referring it to cases where the 
general welfare is beyond the reach of separate provisions by the in- 
dividual states ; and leaving to these their jurisdictions, in cases to 
which their separate provisions may be competent. For, as the autho- 
rity of the individual states must in all cases be incompetent to gene- 
ral regulations operating through the whole, the authority of the 
United States would be extended to every object relating to the gene- 
ral welfare, which might, by any possibility, be provided for by the 
general authority. This qualifying construction, therefore, would 
have little, if any tendency, to circumscribe the power claimed under 
the latitude of the terms " general welfare." 

The true and fair construction of this expression, both in the original 
and existing federal compacts, appears to the committee too obvious 
to be mistaken. In both, the congress is authorized to provide money 
for the common defence and general welfare. In both, is subjoined 
to this authority, an enumeration of the cases, to which their powers 
shall extend. Money cannot be applied to the general welfare, other- 
wise than by an application of it to some particular measures, con- 
ducive to the general welfare. Whenever, therefore, money has been 
raised by the general authority, and is to be applied to a particular 
measure, a question arises, whether the particular measure be within 
the enumerated authorities vested in congress. If it be, the money 
requisite for it, may be applied to it; if it be not, no such application 
can be made. This fair and obvious interpretation coincides with, 
and is enforced by, the clause in the constitution, which declares, that 
" no money shall be drawn from the treasury, but in consequence of 
appropriations by law." An appropriation of money to the general 
welfare, would he deemed rather a mockery than an observance of 
this constitutional injunction. 

2. Whether the exposition of the general phrases here combatted, 
would not, by degrees, consolidate the states into one sovereignty, is a 



33 

question, concerning which the committee can perceive little room for 
difference of opinion. To consolidate the states into one sovereignty, 
nothing more can be wanted, than to supersede their respective sove- 
reignties in the cases reserved to them, by extending the sovereignty 
of the United States, to all cases of the " general welfare," that is to 
say, to all cases whatever. 

3. That the obvious tendency and inevitable result of a consolida- 
tion of the states into one sovereignty, would be to transform the re- 
publican system of the United States into a monarchy, is a point which 
seems to have been sufficiently decided by the general sentiment of 
America. In almost every instance of discussion, relating to the con- 
solidation in question, its certain tendency to pave the way to mo- 
narchy, seems not to have been contested. The prospect of such a 
consolidation, has formed the only topic of controversy. It would be 
unnecessary, therefore, for the committee to dwell long on the reasons 
which support the position of the general assembly. It may not be 
improper, however, to remark two consequences, evidently flowing 
from an extension of the federal powers to every subject falling within 
the idea of the " general welfare." 

One consequence must be, to enlarge the sphere of discretion al- 
lotted to the executive magistrate. Even within the legislative limits 
properly defined by the constitution, the difficulty of accommodating 
legal regulations to a country so great in extent, and so various in its 
circumstances, has been much felt; and has led to occasional invest- 
ments of power in the executive, which involve perhaps as large a por- 
tion of discretion, as can be deemed consistent with the nature of the 
executive trust. In proportion as the objects of legislative care might 
be multiplied, would the time allowed for each be diminished, and the 
difficulty of providing uniform and particular regulations for all, be in- 
creased. From these sources would necessarily ensue a greater lati- 
tude to the agency of that department which is always in existence, 
and which could best mould regulations of a general nature, so as to 
suit them to the diversity of particular situations. And it is in this 
latitude, as a supplement to the deficiency of the laws, that the degree 
of executive prerogative materially consists. 

The other consequence would be, that of an excessive augmentation 
of the offices, honors and emoluments depending on the executive will. 
Add to the present legitimate stock, all those of every description 
which a consolidation of the states would take from them, and turn 
over to the federal government, and the patronage of the executive 
would necessarily be as much swelled in this case, as its prerogative 
would be in the other. 

This disproportionate increase of prerogative and patronage, must, 
evidently, either enable the chief magistrate of the union, by quiet 
means, to secure his re-election from time to time, and finally, to re- 
gulate the succession as he might please ; or, by giving so transcendant 
an importance to the office, would render the elections to it so violent 
and corrupt, that the public voice itself might call for an hereditary, 
in place of an elective succession. Whichever of these events might 
follow, the transformation of the republican system of the United 
States into a monarchy, anticipated by the general assembly from a 
5 



34 

consolidation of the states into one sovereignty, would be equally ac- 
complished ; and whether it would be into a mixed or an absolute mo- 
narchy, might depend on too many contingencies to admit of any cer- 
tain foresight. 

The resolution next in order, is contained in the following terms : 
That the general assembly doth particularly protest against the pal- 
pable and alarming infractions of the constitution, in the two late 
cases of the " alien and sedition acts," passed at the last session of 
congress ; the first of which exercises a power no where delegated to 
the federal government ; and which, by uniting legislative and judi- 
cial powers to those of executive, subverts the general principles of a 
free government, as well as the particular organization and positive 
provisions of the federal constitution ; and the other of which acts 
exercises, in like manner, a power not delegated by the constitution ; 
but, on the contrary, expressly and positively forbidden by one of the 
amendments thereto : a power, which, more than any other, ought to 
produce universal alarm ; because it is levelled against that right of 
freely examining public characters and measures, and of free commu- 
nication among the people thereon, which has ever been justly deemed 
the only effectual guardian of every other right. 

The subject of this resolution having, it is presumed, more particu- 
larly led the general assembly into the proceedings which they com- 
municated to the other states, and being in itself of peculiar impor- 
tance, it deserves the most critical and faithful investigation; for the 
length of which no other apology will be necessary. 

The subject divides itself into first, " The alien act," secondly, 
" The sedition act." 

Of the "alien act," it is affirmed by the resolution, 1st. That it 
exercises a power no where delegated to the federal government. 2d. 
That it unites legislative and judicial powers to those of the execu- 
tive. 3d. That this union of power, subverts the general principles 
of free government. 4th. That it subverts the particular organization 
and positive provisions of the federal constitution. 

In order to clear the way for a correct view of the first position, 
several observations will be premised. 

In the first place, it is to be borne in mind, that it being a charac- 
teristic feature of the federal constitution, as it was originally ratified, 
and an amendment thereto having precisely declared, " That the 
powers not delegated to the United States by the constitution, nor 
prohibited by it to the states, are reserved to the states respectively, or 
to the people," it is incumbent in this, as in every other exercise of 
power by the federal government, to prove from the constitution, that 
it grants the particular power exercised. 

The next observation to be made, is, that much confusion and fal- 
lacy have been thrown into question, by blending the two cases of 
aliens, members of a hostile nation; and aliens, members of friendly 
nations. These two cases are so obviously, and so essentially distinct, 
that it occasions no little surprise that the distinction should have been 
disregarded : and the surprise is so much the greater, as it appears 
that the two cases are actually distinguished by two separate acts of 
congress, passed at the same session, and comprised in the same pub- 



35 

lication ; the one providing for the case of " alien enemies ;" the other 
" concerning aliens" indiscriminately ; and consequently extending to 
aliens of every nation in peace and amity with the United States. 
With respect to alien enemies, no doubt has been intimated as to the 
federal authority over them ; the constitution having expressly dele- 
gated to congress the power to declare war against any nation, and of 
course to treat it and all its members as enemies. With respect to 
aliens, who are not enemies, but members of nations in peace and 
amity with the United States, the power assumed by the act of con- 
gress, is denied to be constitutional ; and it is accordingly against this 
act, that the protest of the general assembly is expressly and exclu- 
sively directed. 

A third observation is, that were it admitted, as is contended, that 
the " act concerning aliens," has for its object, not a penal, but a 
preventive justice, it would still remain to be proved that it comes 
within the constitutional power of the federal legislature ; and if 
within its power, that the legislature has exercised it in a constitutional 
manner. 

In the administration of preventive justice, the following principles 
have been held sacred ; that some probable ground of suspicion be 
exhibited before some judicial authority ; that it be supported by oath 
or affirmation; that the party may avoid being thrown into confine- 
ment, by finding pledges or sureties for his legal conduct sufficient in 
the judgment of some judicial authority; that he may have the bene- 
fit of a writ of habeas corpus, and thus obtain his release, if wrong- 
fully confined ; and that he may at any time be discharged from his 
recognizance, or his confinement, and restored to his former liberty 
and rights, on the order of the proper judicial authority, if it shall see 
sufficient cause. 

All these principles of the only preventive justice known to Ameri- 
can jurisprudence, are violated by the alien act. The ground of 
suspicion is to be judged of, not by any judicial authority, but by the 
executive magistrate alone : no oath or affirmation is required ; if the 
suspicion be held reasonable by the president, he may order the sus- 
pected alien to depart the territory of the t/nited States, without the 
opportunity of avoiding the sentence, by finding pledges for his future 
good conduct; as the president m?j limit the time of departure as he 
pleases, the benefit of the wn* of habeas corpus, may be suspended 
with respect to the party, although the constitution ordains, that it 
shall not be suspended, unless when the public safety may require it 
in case of rebellion or invasion, neither of which existed at the pas- 
sage of the act : and the party being under the sentence of the presi- 
dent, either removed from the United States, or being punished by 
imprisonment, or disqualification ever to become a citizen on convic- 
tion of not obeying the order of removal, he cannot be discharged 
from the proceedings against him, and restored to the benefits of his 
former situation, although the highest judicial authority should see 
the most sufficient cause for it. 

But, in the last place, it can never be admitted, that the removal of 
aliens, authorized by the act, is to be considered, not as punishment 
for an offence ; but as a measure of precaution and prevention. If 






36 

the banishment of an alien from a country into which he has been 
invited, as the asylum most auspicious to his happiness ; a country, 
where he may have formed the most tender of connections, where he 
may have vested his entire property, and acquired property of the real 
and permanent, as well as the moveable and temporary kind ; where 
he enjoys under the laws, a greater share of the blessings of personal 
security and personal liberty, than he can elsewhere hope for, and 
where he may have nearly completed his probationary title to citizen- 
ship ; if, moreover, in the execution of the sentence against him, he 
is to be exposed, not only to the ordinary dangers of the sea, but to 
the peculiar casualties incident to a crisis of war, and of unusual 
licentiousness on that element, and possibly to vindictive purposes 
which his emigration itself may have provoked ; if a banishment of 
this sort be not a punishment, and among the severest of punishments, 
it will be difficult to imagine a doom to which the name can be applied. 
And if it be a punishment, it will remain to be enquired, whether it 
can be constitutionally inflicted, on mere suspicion, by the single will 
of the executive magistrate, on persons convicted of no personal of- 
fence against the laws of the land, nor involved in any offence against 
the law of nations, charged on the foreign state of which they are 
members. 

One argument offered in justification of this power exercised over 
aliens, is, that the admission of them into the country being of favor, 
not of right, the favor is at all times revocable. 

To this argument it might be answered, that allowing the truth of 
the inference, it would be no proof of what is required. A question 
would still occur, whether the constitution had vested the discretionary 
power of admitting aliens, in the federal government or in the state 
governments. 

But it cannot be a true inference, that because the admission of an 
alien is a favor, the favor may be revoked at pleasure. A grant of 
land to an individual, may be of favor, not of right ; but the moment 
the grant is made, the favor becomes a right, and must be forfeited 
before it can be taken away. To pardon a malefactor may be favor, 
but the pardon is not, on that account, the less irrevocable. To admit 
an alien to naturalization, is &« much a favor, as to admit him to re- 
side in the country; yet it cannot be pretended, that a person natu- 
ralized can be deprived of the benefit, any more than a native citizen 
can be disfranchised. 

Again, it is said, that aliens not being patties to the constitution, 
the rights and privileges which it secures, cannot be at all claimed by 
them. 

To this reasoning also, it might be answered, that although aliens 
are not parties to the constitution, it does not follow that the constitu- 
tion has vested in congress an absolute power over them. The par- 
ties to the constitution may have granted, or retained, or modified the 
power over aliens, without regard to that particular consideration. 

But a more direct reply is, that it does not follow, because aliens 
are not parties to the constitution, as citizens are parties to it, that 
whilst they actually conform to it, they have no right to its protection. 
Aliens are not more parties to the laws, than they are parties to the 



37 

constitution ; yet, it will not be disputed, that as they owe on one 
hand, a temporary obedience, they are entitled in return to their pro- 
tection and advantage. 

If aliens had no rights under the constitution, they might not only 
be banished, but even capitally punished, without a jury or the other 
incidents to a fair trial. But so far has a contrary principle been car- 
ried, in every part of the United States, that except on charges of 
treason, an alien has, besides all the common privileges, the special 
one of being tried by a jury, of which one half may be also aliens. 

It is said, further, that by the law and practice of nations, aliens 
may be removed at discretion, for offences against the law of nations ; 
that congress are authorized to define and punish such offences ; and 
that to be dangerous to the peace of society is, in aliens, one of those 
offences. 

The distinction between alien enemies and alien friends, is a clear 
and conclusive answer to this argument. Alien enemies are under 
the law of nations, and liable to be punished for offences against it. 
Alien friends, except in the single case of public ministers, are under 
the municipal law, and must be tried and punished according to that 
law only. 

This argument also, by referring the alien act, to the power of con- 
gress to define and punish offences against the law of nations, yields 
the point that the act is of a penal, not merely of a preventive opera- 
tion. It must, in truth, be so considered. And if it be a penal act, 
the punishment it inflicts, must be justified by some offence that de- 
serves it. 

Offences for which aliens, within the jurisdiction of a country, are 
punishable, are first, offences committed by the nation of which they 
make a part, and in whose offences they are involved : Secondly, of- 
fences committed by themselves alone, without any charge against the 
nation to which they belong. The first is the case of alien enemies ; 
the second, the case of alien friends. In the first case, the offending 
nation can no otherwise be punishied than by war, one of the laws 
of which authorizes the expulsion 6T such of its members, as may be 
found within the country, against which the offence has been com- 
mitted. In the second case, the offence being committed by the in- 
dividual, not by his nation, and against the municipal law, not against 
the law of nations, the individual only, and not the nation, is punish- 
able ; and the punishment must be conducted according to the muni- 
cipal law, not according to the law of nations. Under this view of the 
subject, the act of congress, for the removal of alien enemies, being 
conformable to the law of nations, is justified by the constitution : and 
the " act," for the removal of alien friends, being repugnant to the 
constitutional principles of municipal law, is unjustifiable. 

Nor is the act of congress, for the removal of alien friends, more 
agreeable to the general practice of nations, than it is within the pur- 
view of the law of nations. The general practice of nations, distin- 
guishes between alien friends and alien enemies. The latter it has 
proceeded against, according to the law of nations, by expelling them 
as enemies. The former it has considered as under a local and tem- 
porary allegiance, and entitled to a correspondent protection. If con- 



38 

trary instances are to be found in barbarous countries, under unde- 
fined prerogatives, or amid revolutionary dangers, they will not be 
deemed fit precedents for the government of the United States, even 
if not beyond its constitutional authority. 

It is said, that congress may grant letters of marque and reprisal ; 
that reprisals may be made on persons, as well as property ; and that 
the removal of aliens may be considered as the exercise in an inferior 
degree, of the general power of reprisal on persons. 

Without entering minutely into a question that does not seem to re- 
quire it, it may be remarked, that reprisal is a seizure of foreign per- 
sons or property, with a view to obtain that justice for injuries done 
by one state or its members, to another state or its members, for 
which, a refusal of the aggressor requires such a resort to force under 
the law of nations. It must be considered as an abuse of words to 
call the removal of persons from a country, a seizure or reprisal on 
them : nor is the distinction to be overlooked between reprisals on 
persons within the country and under the faith of its laws, and on 
persons out of the country. But, laying aside these considerations, 
it is evidently impossible to bring the alien act within the power of 
granting reprisals; since it does not allege or imply any injury re- 
ceived from any particular nation, for which this proceeding against 
its members was intended as a reparation. The proceeding is autho- 
rized against aliens of every nation ; of nations charged neither with 
any similar proceeding against American citizens, nor with any inju- 
ries for which justice might be sought, in the mode prescribed by the 
act. Were it true, therefore, that good causes existed for reprisals 
against one or more foreign nations, and that neither the persons nor 
property of its members, under the faith of our laws, could plead an 
exemption, the operation of the act ought to have been limited to the 
aliens among us, belonging to such nations. To license reprisals 
against all nations, for aggressions charged on one only, would be a 
measure as contrary to every principle of justice and public law, as to 
a wise policy, and the universal practice of nations. 

It is said, that the right of removing aliens is an incident to the 
power of war, vested in congress by the constitution. 

This is a former argument in a new shape only: and is answered 
by repeating, that the removal of alien enemies is an incident to the 
power of war ; that the removal of alien friends, is not an incident to 
the power of war. 

It is said, that congress are by the constitution to protect each state 
against invasion ; and that the means of preventing invasion are in- 
cluded in the power of protection against it. 

The power of war in general, having been before granted by the 
constitution, this clause must either be a mere specification for greater 
caution and certainty, of which there are other examples in the in- 
strument, or be the injunction of a duty, superadded to a grant of 
the power. Under either explanation, it cannot enlarge the powers of 
congress on the subject. The power and the duty to protect each 
state against an invading enemy, would be the same under the general 
power, if this regard to greater caution had been omitted. 



39 

Invasion is an operation of war. To protect against invasion is an 
exercise of the power of war. A power, therefore, not incident to 
war, cannot be incident to a particular modification of war. And as 
the removal of alien friends, has appeared to be no incident to a ge- 
neral state of war, it cannot be incident to a partial state, or a particular 
modification of war. 

Nor can it ever be granted, that a power to act on a case when it 
actually occurs, includes a power over all the means that may tend to 
prevent the occurrence of the case. Such a latitude of construction 
would render unavailing, every practicable definition of particular and 
limited powers. Under the idea of preventing war in general, as well 
as invasion in particular, not only an indiscriminate removal of all 
aliens might be enforced, but a thousand other things still more remote 
from the operations and precautions appurtenant to war, might take 
place. A bigotted or tyrannical nation might threaten us with war, 
unless certain religious or political regulations were adopted by us ; 
yet it never could be inferred, if the regulations which would prevent 
war, were such as congress had otherwise no power to make, that the 
power to make them would grow out of the purpose they were to an- 
swer. Congress have power to suppress insurrections, yet it would 
not be allowed to follow, that they might employ all the means tending 
to prevent them ; of which a system of moral instruction for the igno- 
rant, and of provident support for the poor, might be regarded as 
among the most efficacious. 

One argument for the power of the general government to remove 
aliens, would have been passed in silence, if it had appeared under 
any authority inferior to that of a report, made during the last session 
of congress, to the house of representatives by a committee, and ap- 
proved by the house. The doctrine on which this argument is founded, 
is of so new and so extraordinary a character, and strikes so radically 
at the political system of America, that it is proper to state it in the 
very words of the report. 

" The act [concerning aliens,] is said to be unconstitutional, be- 
cause to remove aliens is a direct breach of the constitution, which 
provides, by the 9th section, of the 1st article, that the migration or 
importation of such persons as any of the states shall think proper to 
admit, shall not be prohibited by the congress, prior to the year 1808." 

Among the answers given to this objection to the constitutionality 
of the act, the following very remarkable one is extracted : 

" Thirdly, that as the constitution has given to the states no power 
to remove aliens, during the period of the limitation under considera- 
tion, in the mean time, on the construction assumed, there would be 
no authority in the country, empowered to send away dangerous aliens, 
which cannot be admitted." 

The reasoning here used, would not in any view, be conclusive ; 
because there are powers exercised by most other governments, which, 
in the United States are withheld by the people, both from the general 
government and from the state governments. Of this sort are many 
of the powers prohibited by the declarations of right prefixed to the 
constitutions, or by the clauses in the constitutions, in the nature of 
such declarations. Nay, so far is the political system of the United 



40 

States distinguishable from that of other countries, by the caution with 
which powers are delegated and defined, that in one very important 
case, even of commercial regulation and revenue, the power is abso- 
lutely locked up against the hands of both governments. A tax on 
exports can be laid by no constitutional authority whatever. Under a 
system thus peculiarly guarded, there could surely be no absurdity in 
supposing, that alien friends, who if guilty of treasonable machinations 
may be punished, or if suspected on probable grounds, may be se- 
cured by pledges or imprisonment, in like manner with permanent 
citizens, were never meant to be subjected to banishment by any arbi- 
trary and unusual process, either under the one government or the 
other. 

But, it is not the inconciusiveness of the general reasoning in this 
passage, which chiefly calls the attention to it. It is the principle as- 
sumed by it, that the powers held by the states, are given to them by 
the constitution of the United States ; and the inference from this 
principle, that the powers supposed to be necessary which are not so 
given to the state governments, must reside in the government of the 
United States. 

The respect, which is felt for every portion of the constituted autho- 
rities, forbids some of the reflections which this singular paragraph 
might excite; and they are the more readily suppressed, as it may be 
presumed, with justice perhaps, as well as candor, that inadvertence 
may have had its share in the error. It would be an unjustifiable deli- 
cacy, nevertheless, to pass by so portentous a claim, proceeding from 
so high an authority, without a monitory notice of the fatal tendencies 
with which it would be pregnant. 

Lastly, is said, that a law on the same subject with the alien act, 
passed by this state originally in 1785, and re-enacted in 1792, is a 
proof that a summary removal of suspected aliens, was not heretofore 
regarded by the Virginia legislature, as liable to the objections now 
urged against such a measure. 

This charge against Virginia vanishes before the simple remark, 
that the law of Virginia relates to " suspicious persons being the sub- 
jects of any foreign power or state, who shall have made a declaration 
of war, or actually commenced hostilities, or from whom the president 
shall apprehend hostile designs ;" whereas the act of congress relates 
to aliens, being the subjects of foreign powers and states, who have 
neither declared war, nor commenced hostilities, nor from whom hostile 
designs are apprehended. 

II. It is next affirmed of the alien act, that it unites legislative, 
judicial and executive powers in the hands of the president. 

However difficult it may be to mark, in every case, with clearness 
and certainty, the line which divides legislative power, from the other 
departments of power, all will agree, that the powers referred to these 
departments may be so general and undefined, as to be of a legislative, 
not of an executive or judicial nature ; and may for that reason be 
unconstitutional. Details to a certain degree, are essential to the na- 
ture and character of a law ; and on criminal subjects, it is proper, 
that details should leave as little as possible to the discretion of those 
who are to apply and to execute the law. If nothing more were re- 



41 

quired, in exercising a legislative trust, than a general conveyance of 
authority, without laying down any precise rules, by which the autho- 
rity conveyed, should be carried into effect; it would follow, that the 
whole power of legislation might be transferred by the legislature from 
itself, and proclamations might become substitutes for laws. A dele- 
gation of power in this latitude, would not be denied to be a union of the 
different powers. 

To determine, then, whether the appropriate powers of the distinct 
departments are united by the act authorizing the executive to re- 
move aliens, it must be enquired whether it contains such details, de- 
finitions and rules, as appertain to the true character of a law ; espe- 
cially, a law by which personal liberty is invaded, property deprived 
of its value to the owner, and life itself indirectly exposed to danger. 

The alien act declares, " that it shall be lawful for the president to 
order all such aliens as he shall judge dangerous to the peace and 
safety of the United States, or shall have reasonable ground to suspect, 
are concerned in any treasonable, or secret machinations, against the 
government thereof, to depart," &c. 

Could a power be well given in terms less definite, less particular, 
and less precise ? To be dangerous to the public safety ; to be sus- 
pected of secret machinations against the government : these can never 
be mistaken for legal rules or certain definitions. They leave every 
thing to the president. His will is the law. 

But, it is not a legislative power only that is given to the president. 
He is to stand in the place of the judiciary also. His suspicion is the 
only evidence which is to convict : his order, the only judgment which 
is to be executed. 

Thus, it is the president whose will is to designate the offensive 
conduct; it is his will that is to ascertain the individuals on whom it 
is charged ; and it is his will, that is to cause the sentence to be exe- 
cuted. It is rightly affirmed, therefore, that the act unites legislative 
and judicial powers to those of the executive. 

III. It is affirmed, that this union of power subverts the general 
principles of free government. 

It has become an axiom in the science of government, that a sepa- 
ration of the legislative, executive, and judicial departments, is ne- 
cessary to the preservation of public liberty. No where has this axiom 
been better understood in theory, or more carefully pursued in prac- 
tice, than in the United States. 

IV. It is affirmed that such a union of powers subverts the particular 
organization and positive provisions of the federal constitution. 

According to the particular organization of the constitution, its le- 
gislative powers are vested in the congress, its executive powers in the 
president, and its judicial powers in a supreme and inferior tribunals. 
The union of any two of these powers, and still more of all three, in 
any one of these departments, as has been shewn to be done by the 
alien act, must consequently subvert the constitutional organization of 
them. 

That positive provisions, in the constitution, securing to individuals 
the benefits of fair trial, are also violated by the union of powers in 
the alien act, necessarily results from the two facts, that the act re- 
6 



42 

lates to alien friends, and that alien friends being under the municipal 
law only, are entitled to its protection. 

The second object against which the resolution protests, is the sedi- 
tion act. 

Of this act it is affirmed, 1. That it exercises in like manner a 
power not delegated by the constitution. 2. That the power, on the 
contrary, is expressly and positively forbidden by one of the amend- 
ments to the constitution. 3. That this is a power, which more than 
any other ought to produce universal alarm ; because it is levelled 
against that right of freely examining public characters and measures, 
and of free communication thereon, which has ever been justly deemed 
the only effectual guardian of every other right. 

1. That it exercises a power not delegated by the constitution. 

Here again, it will be proper to recollect, that the federal govern- 
ment being composed of powers specifically granted, with a reservation 
of all others to the states or to the people, the positive authority under 
which the sedition act could be passed must be produced by those 
who assert its constitutionality. In what part of the constitution, then, 
is this authority to be found 1 

Several attempts have been made to answer this question, which will 
be examined in their order. The committee will begin with one, which 
has filled them with equal astonishment and apprehension ; and which, 
they cannot but persuade themselves, must have the same effect on all, 
who will consider it with coolness and impartiality, and with a reve- 
rence for our constitution, in the true character in which it issued 
from the sovereign authority of the people. The committee refer to 
the doctrine lately advanced as a sanction to the sedition act, " that 
the common or unwritten law," a law of vast extent and complexity, 
and embracing almost every possible subject of legislation, both civil 
and criminal, makes a part of the law of these states, in their united 
and national capacity. 

The novelty, and in the judgment of the committee, the extrava- 
gance of this pretension, would have consigned it to the silence, in 
which they have passed by other arguments, which an extraordinary 
zeal for the act has drawn into the discussion : But, the auspices, under 
which this innovation presents itself, have constrained the committee 
to bestow on it an attention, which other considerations might have 
forbidden. 

In executing the task, it may be of use, to look back to the colonial 
state of this country, prior to the revolution ; to trace the effect of the 
revolution which converted the colonies into independent states; to 
enquire into the import of the articles of confederation, the first in- 
strument by which the union of the states was regularly established ; 
and finally, to consult the constitution of 1788, which is the oracle 
that must decide the important question. 

In the state prior to the revolution, it is certain that the common 
law under different limitations, made a part of the colonial codes. 
But whether it be understood that the original colonists brought the 
law with them, or made it their law by adoption ; it is equally certain, 
that it was the separate law of each colony within its respective limits, 



43 

and was unknown to them, as a law pervading and operating through 
the whole, as one society. 

It could not possibly be otherwise. The common law was not the 
same in any two of the colonies ; in some, the modifications were 
materially and extensively different. There was no common legisla- 
ture, by which, a common will could be expressed in the form of a 
law; nor any common magistracy, by which such a law could be car- 
ried into practice. The will of each colony, alone and separately, 
had its organs for these purposes. 

This stage of our political history, furnishes no foothold for the 
patrons of this new doctrine. 

Did then the principle or operation of the great event which made 
the colonies independent states, imply or introduce the common law, 
as a law of the union 1 

The fundamental principle of the revolution was, that the colonies 
were co-ordinate members with each other, and with Great Britain, 
of an empire, united by a common executive sovereign, but not united 
by any common legislative sovereign. The legislative power was 
maintained to be as complete in each American parliament, as in the 
British parliament. And the royal prerogative was in force in each 
colony, by virtue of its acknowledging the king for its executive ma- 
gistrate, as it was in Great Britain, by virtue of a like acknowledg- 
ment there. A denial of these principles by Great Britain, and the 
assertion of them by America, produced the revolution. _— — - 

There was a time indeed, when an exception to the legislative sepa- 
ration of the several component and co-equal parts of the empire, ob- 
tained a degree of acquiescence. The British parliament was allowed 
to regulate the trade with foreign nations, and between the different 
parts of the empire. This was, however, mere practice without right, 
and contrary to the true theory of the constitution. The conveniency 
of some regulations, in both those cases, was apparent; and as there 
was no legislature with power over the whole, nor any constitutional 
pre-eminence among the legislatures of the several parts, it was natu- 
ral for the legislature of that particular part which was the eldest and 
the largest, to assume this function, and for the others to acquiesce in 
it. This tacit arrangement was the less criticised, as the regulations 
established by the British parliament operated in favor of that part of 
the empire which seemed to bear the principal share of the public 
burdens, and were regarded as an indemnification of its advances for 
the other parts. As long as this regulating power was confined to the 
two objects of conveniency and equity, it was not complained of, nor 
much enquired into. But, no sooner was it perverted to the selfish 
views of the party assuming it, than the injured parties began to feel 
and to reflect ; and the moment the claim to a direct and indefinite 
power was ingrafted on the precedent of the regulating power, the 
whole charm was dissolved, and every eye opened to the usurpation. 
The assertion by Great Britain of a power to make laws for the other 
members of the empire in all cases whatsoever, ended in the discovery, 
that she had a right to make laws for them in no cases whatsoever. 

Such being the ground of our revolution, no support nor color can 
be drawn from it, for the doctrine that the common law is binding on 



4, 

these states as one society. The doctrine, on the contrary, is evi- 
dently repugnant to the fundamental principle of the revolution. ^S 

The articles of confederation, are the next source of information on 
this subject. 

In the interval between the commencement of the revolution and 
the final ratification of these articles, the nature and extent of the 
union was determined by the circumstances of the crisis, rather than 
by any accurate delineation of the general authority. It will not be 
alleged, that the ". common law" could have had any legitimate birth 
as a law of the United States during that state of things. If it came 
as such into existence at all, the charter of confederation must have 
been its parent. 

Here again, however, its pretensions are absolutely destitute of 
foundation. This instrument does not contain a sentence or sylla- 
ble that can be tortured into a countenance of the idea, that the par- 
ties to it were, with respect to the objects of the common law, to form 
one community. No such law is named or implied, or alluded to, as 
being in force, or as brought into force by that compact. No provi- 
sion is made by which such a law could be carried into operation; 
whilst, on the other hand, every such inference or pretext is absolutely 
precluded by article 2d, which declares " that each state retains its so- 
vereignty, freedom and independence, and every power, jurisdiction 
and right, which is not by this confederation expressly delegated to 
the United States, in congress assembled." 

Thus far it appears, that not a vestige of this extraordinary doc- 
trine can be found in the origin or progress of American institutions. 
The evidence against it has, on the contrary, grown stronger at every 
step, till it has amounted to a formal and positive exclusion, by written 
articles of compact among the parties concerned. 

Is this exclusion revoked, and the common law introduced as a na- 
tional law, by the present constitution of the United States? This is 
the final question to be examined. 

It is readily admitted, that particular parts of the common law may 
have a sanction from the constitution, so far as they are necessarily 
comprehended in the technical phrases which express the powers dele- 
gated to the government ; and so far also, as such other parts may be 
adopted by congress as necessary and proper for carrying into execu- 
tion the powers expressly delegated. But, the question does not relate 
to either of these portions of the common law. It relates to the com- 
mon law beyond these limitations. 

The only part of the constitution which seems to have been relied 
on in this case, is the 2d sect, of art. III. " The judicial power shall 
extend to all cases, in law arid equity, arising under this constitution, 
the laws of the United States, and treaties made or which shall be 
made under their authority." 

It has been asked what cases, distinct from those arising under the 
laws and treaties of the United States, can arise under the constitu- 
tion, other than those arising under the common law; and it is in- 
ferred, that the common law is accordingly adopted or recognized by 
the constitution. 



45 

Never, perhaps, was so broad a construction applied to a text so 
clearly unsusceptible of it. If any color for the inference could be 
found, it must be in the impossibility of finding any other cases in 
law and equity, within the provision of the constitution, to satisfy the 
expression; and rather than resort to a construction affecting so es- 
sentially the whole character of the government, it would perhaps be 
more rational to consider the expression as a mere pleonasm or inad- 
vertence. But, it is not necessary to decide on such a dilemma. The 
expression is fully satisfied, and its accuracy justified, by two descrip- 
tions of cases, to which the judicial authority is extended, and neither 
of which implies that the common law is the law of the United States. 
One of these descriptions comprehends the cases growing out of the 
restrictions on the legislative power of the states. For example, it is 
provided that " no state shall emit bills of credit," or " make any thing 
but gold and silver coin a tender in payment of debts." Should this 
prohibition be violated, and a suit between citizens of the same state be 
the consequence, this would be a case arising under the constitution 
before the judicial power of the United States. A second description 
comprehends suits between citizens and foreigners, or citizens of dif- 
ferent states, to be decided according to the state or foreign laws; but 
submitted by the constitution to the judicial power of the United 
States ; the judical power being, in several instances, extended be- 
yond the legislative power of the United States. 

To this explanation of the text, the following observations may be 
added : 

The expression, " cases in law and equity," is manifestly confined 
to cases of a civil nature ; and would exclude cases of criminal juris- 
diction. Criminal cases in law and equity would be a language un- 
known to the law. 

The succeeding paragraph of the same section is in harmony with 
this construction. It is in these words : " In all cases affecting am- 
bassadors, other public ministers, and consuls, and those in which a 
state shall be a party, the supreme court shall have original jurisdic- 
tion. In all the other cases [including cases in law and equity arising 
under the constitution] the supreme court shall have appellate juris- 
diction both as to law and fact; with such exceptions, and under 
such regulations, as congress shall make." 

This paragraph, by expressly giving an appellate jurisdiction, in 
eases of law and equity arising under the constitution, to fact, as well 
as to law, clearly excludes criminal cases, where the trial by jury is 
secured ; because the fact, in such cases, is not a subject of appeal. 
And, although the appeal is liable to such exceptions and regulations 
as congress may adopt, yet it is not to be supposed that an exception 
of all criminal cases could be contemplated ; as well because a discre- 
tion in congress to make or omit the exception would be improper, as be- 
cause it would have been unnecessary. The exception could as easily 
have been made by the constitution itself, as referred to the congress. 
Once more; the amendment last added to the constitution, de- 
serves attention, as throwing light on this subject. " The judicial 
power of the United States shall not be construed to extend to any 
suit in law or equity t commenced or prosecuted against one of the 



46 

United States, by citizens of another state, or by citizens or subjects 
of any foreign power." As it will not be pretended that any criminal 
proceeding could take place against a state, the terms law or equity t 
must be understood as appropriate to civil, in exclusion of criminal 
cases. 

From these considerations, it is evident, that this part of the consti- 
tution, even if it could be applied at all to the purpose for which it 
has been cited, would not include any cases whatever of a criminal 
nature ; and consequently, would not authorize the inference from it, 
that the judicial authority extends to offences against the common law, 
as offences arising under the constitution. 

It is further to be considered, that even if this part of the constitu- 
tion could be strained into an application to every common law case, 
criminal as well as civil, it could have no effect in justifying the sedi- 
tion act, which is an exercise of legislative, and not of judicial power : 
and it is the judicial power only, of which the extent is defined in this 
part of the constitution. 

There are two passages in the constitution, in which a description 
of the law of the United States is found. The first is contained in 
art. III. sec. 2, in the words following : " This constitution, the laws 
of the United States, and treaties made, or which shall be made under 
their authority." The second is contained in the 2d paragraph of art. 
VI. as follows : " This constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, shall 
be the supreme law of the land." The first of these descriptions was 
meant as a guide to the judges of the United States; the second, as 
a guide to the judges in the several states. Both of them consist of 
an enumeration, which was evidently meant to be precise and com- 
plete. If the common law had been understood to be a law of the 
United States, it is not possible to assign a satisfactory reason why it 
was not expressed in the enumeration. 

In aid of these objections, the difficulties and confusion inseparable 
from a constructive introduction of the common law, would afford 
powerful reasons against it. 

Is it to be the common law with, or without the British statutes? 

If without the statutory amendments, the vices of the code would 
be insupportable ! 

If with these amendments, what period is to be fixed for limiting 
the British authority over our laws ? 

Is it to be the date of the eldest or the youngest of the colonies? 

Or are the dates to be thrown together, and a medium deduced ? 

Or is our independence to be taken for the date ? 

Is, again, regard to be had to the various changes in the common 
law made by the local codes of America? 

Is regard to be had to such changes, subsequent, as well as prior, 
to the establishment of the constitution ? 

Is regard to be had to future, as well as past changes ? 

Is the law to be different in every state, as differently modified by 
its code ; or are the modifications of any particular state to be applied 
to all? 






47 

And on the latter supposition, which among the state codes would 
form the standard? 

Questions of this sort might be multiplied with as much ease, as 
there would be difficulty in answering them. 

The consequences flowing from the proposed construction, furnish 
other objections equally conclusive ; unless the text were peremptory 
in its meaning, and consistent with other parts of the instrument. 

These consequences may be in relation to the legislative authority 
of the United States ; to the executive authority ; to the judicial autho- 
rity; and to the governments of the several states. 

If it be understood, that the common law is established by the con- 
stitution, it follows that no part of the law can be altered by the legis- 
lature; such of the statutes, already passed, as may be repugnant 
thereto, would be nullified; particularly the "sedition act" itself, which 
boasts of being a melioration of the common law ; and the whole code, 
with all its incongruities, barbarisms, and bloody maxims, would be 
inviolably saddled on the good people of the United States. 

Should this consequence be rejected, and the common law be held, 
like other laws, liable to revision and alteration, by the authority of 
congress, it then follows, that the authority of congress is co-exten- 
sive with the objects of common law; that is to say, with every object 
of legislation : For, to every such object does some branch or other of 
the common law extend. The authority of congress would, therefore, 
be no longer under the limitations marked out in the constitution. 
They would be authorized to legislate in all cases whatsoever. 

In the next place, as the president possesses the executive powers 
of the constitution, and is to see that the laws be faithfully executed, 
his authority also must be co-extensive with every branch of the com- 
mon law. The additions which this would make to his power, though 
not readily to be estimated, claim the most serious attention. 

This is not all ; it will merit the most profound consideration, how 
far an indefinite admission of the common law, with a latitude in con- 
struing it, equal to the construction by which it is deduced from the 
constitution, might draw after it the various prerogatives making part 
of the unwritten law of England. The English constitution itself is 
nothing more than a composition of unwritten laws and maxims. 

In the third place, whether the common law be admitted as of 
legal or of constitutional obligation, it would confer on the judicial 
department a discretion little short of a legislative power. 

On the supposition of its having a constitutional obligation, this 
power in the judges would be permanent and irremediable by the le- 
gislature. On the other supposition, the power would not expire, un- 
til the legislature should have introduced a full system of statutory 
provisions. Let it be observed, too, that besides all the uncertainties 
above enumerated, and which present an immense field for judicial 
discretion, it would remain with the same department to decide what 
parts of the common law would, and what would not, be properly ap- 
plicable to the circumstances of the United States. 

A discretion of this sort has always been lamented as incongruous 
and dangerous, even in the colonial and state courts ; although so 
much narrowed by positive provisions in the local codes on all the 



48 

principal subjects embraced by the common law. Under the United 
States, where so few laws exist on those subjects, and where so great 
a lapse of time must happen before the vast chasm could be supplied, 
it is manifest that the power of the judges over the law would, in fact, 
erect them into legislators; and, that for a long time, it would be im- 
possible for the citizens to conjecture, either what was, or would be 
law. 

In the last place, the consequence of admitting the common law as 
the Jaw of the United States, on the authority of the individual states, 
is as obvious as it would be fatal. As this law relates to every subject 
of legislation, and would be paramount to the constitutions and laws 
of the states, the admission of it would overwhelm the residuary 
sovereignty of the states, and by one constructive operation, new-mo- 
del the whole political fabric of the country. 

From the review thus taken of the situation of the American colo- 
nies prior to their independence ; of the effect of this event on their 
situation ; of the nature and import of the articles of confederation ; 
of the true meaning of the passage in the existing constitution from 
which the common law has been deduced ; of the difficulties and un- 
certainties incident to the doctrine; and of its vast consequences in 
extending the powers of the federal governrpent, and in superseding 
the authorities of the state governments ; the committee feel the ut- 
most confidence in concluding, that the common law never was, nor 
by any fair construction, ever can be, deemed a law for the American 
people as one community; and they indulge the strongest expectation 
that the same conclusion will finally be drawn, by all candid and ac- 
curate enquirers into the subject. It is indeed distressing to reflect, 
that it ever should have been made a question, whether the constitu- 
tion, on the whole face of which is seen so much labor to enumerate 
and define the several objects of federal power, could intend to intro- 
duce in the lump, in an indirect manner, and by a forced construc- 
tion of a few phrases, the vast and multifarious jurisdiction involved 
in the common law; a law filling so many ample volumes; a law 
overspreading the entire field of legislation ; and a law that would sap 
the foundation of the constitution as a system of limited and specified 
powers. A severer reproach could not in the opinion of the commit- 
tee be thrown on the constitution, on those who framed, or on those 
who established it, than such a supposition would throw on them. 

The argument, then, drawn from the common law, on the ground 
of its being adopted or recognized by the constitution, being inappli- 
cable to the sedition act, the committee will proceed to examine the 
other arguments which have been founded on the constitution. 

They will waste but little time on the attempt to cover the act by 
the preamble to the constitution; it being contrary to every acknow- 
ledged rule of construction, to set up this part of an instrument, in 
opposition to the plain meaning, expressed in the body of the instru- 
ment. A preamble usually contains the general motives or reasons, 
for the particular regulations or measures which follow it; and is al- 
ways understood to be explained and limited by them. In the pre- 
sent instance, a contrary interpretation would have the inadmissible 



t 



49 

effect, of rendering nugatory or improper, every part of the constitu- 
tion which succeeds the preamble. 

The paragraph in art. I. sec. 8, which contains the power to lay 
and collect taxes, duties, imposts and excises; to pay the debts, and 
provide for the common defence and general welfare, having been 
already examined, will also require no particular attention in this 
place. It will have been seen that in its fair and consistent meaning, 
it cannot enlarge the enumerated powers vested in congress. 

The part of the constitution which seems most to be recurred to, 
in defence of the " sedition act," is the last clause of the above sec- 
tion, empowering congress " to make all laws which shall be neces- 
sary and proper for carrying into execution the foregoing powers, and 
all other powers vested by this constitution in the government of the 
United States, or in any department or officer thereof" 

The plain import of this clause is, that congress shall have all the 
incidental or instrumental powers necessary and proper for carrying 
into execution all the express powers ; whether they be vested in the 
government of the United States, more collectively, or in the several 
departments or officers thereof. It is not a grant of new powers to 
congress, but merely a declaration, for the removal of all uncertainty, 
that the means of carrying into execution, those otherwise granted, 
are included in the grant. 

"^ Whenever, therefore, a question arises concerning the constitution- 
ality of a particular power, the first question is, whether the power be 
expressed in the constitution. If it be, the question is decided. If 
it be not expressed, the next enquiry must be, whether it is properly 
an incident to an express power, and necessary to its execution. If 
it be, it may' be exercised by congress. If it be not, congress cannot 
exercise it. 

Let the question be asked, then, whether the power over the press 
exercised in the " sedition act," be found among the powers expressly 
vested in the congress? This is not pretended. 

Is there any express power, for executing which it is a necessary and 
proper power ? 

The power which has been selected, as least remote, in answer to 
this question, is that of " suppressing insurrections;" which is said to 
imply a power to prevent insurrections, by punishing whatever may 
had or tend to them. But, it surely cannot, with the least plausibility, 
be said, that a regulation of the press, and a punishment of libels, 
are exercises of a power to suppress insurrections. The most that 
could be said, would be, that the punishment of libels, if it had the 
tendency ascribed to it, might prevent the occasion of passing or exe- 
cuting laws necessary and proper for the suppression of insurrections. 

Has the federal government no power, then, to prevent as well as 
to punish resistance to the laws? 

They have the power, which the constitution deemed most proper, 
in their hands for the purpose. The congress has power, before it 
happens, to pass laws for punishing it; and the executive and judi- 
ciary have power to enforce those laws when it does happen. 

It must be recollected by many, and could be'shewn to the satisfac- 
tion of all, that the construction here put on the terms "necessary 
7 ' 



50 

and proper," is precisely the construction which prevailed during the 
discussions and ratifications of the constitution. It may be added, 
and cannot too often be repeated, that it is a construction absolutely 
necessary to maintain their consistency with the peculiar character of 
the government, as possessed of particular and defined powers only ; 
not of the general and indefinite powers vested in ordinary govern- 
ments. For, if the power to suppress insurrections, includes a power 
to punish libels ; or if the power to punish, includes a power to pre- 
vent, by all the means that may have that tendency ; such is the rela- 
tion and influence among the most remote subjects of legislations, 
that a power over a very few, would carry with it a power over all. 
And it must be wholly immaterial, whether unlimited powers be exer- 
cised under the name of unlimited powers, or be exercised under the 
name of unlimited means of carrying into execution limited powers. 

This branch of the subject will be closed with a reflection which 
must have weight with all ; but more especially with those who place 
peculiar reliance on the judicial exposition of the constitution, as the 
bulwark provided against undue extensions of the legislative power. 
If it be understood that the powers implied in the specified powers, 
have an immediate and appropriate relation to them, as means, neces^ 
sary and proper for carrying them into execution, questions on the 
constitutionality of laws passed for this purpose, will be of a nature 
sufficiently precise and determinate for judicial cognizance and con-*^ 
trol ! If, on the other hand, congress are not limited in the choice of 
means by any such appropriate relation of them to the specified 
powers; but may employ all such means as they may deem fitted to 
prevent, as well as to punish, crimes subjected to their authority ; such 
as may have a tendency only to promote an object for which they are 
authorized to provide; every one must perceive, that questions relating 
to means of this sort, must be questions of mere policy and expe- 
diency ; on which, legislative discretion alone can decide, and from 
which the judicial interposition and control are completely excluded. 

2. The next point which the resolution requires to be proved, is, 
that the power over the press exercised by the sedition act, is positively 
forbidden by one of the amendments to the constitution. 

The amendment stands in these words — " Congress shall make no 
law respecting an establishment of religion, or prohibiting the free 
exercise thereof, or abridging the freedom of speech or of the press ; 
or the right of the people peaceably to assemble, and to petition the 
government for a redress of grievances." 

In the attempts to vindicate the " sedition act," it has been con- 
tended, 1. That the " freedom of the press" is to be determined by 
the meaning of these terms in the common law. 2. That the article 
supposes the power over the press to be in congress, and prohibits them 
only from abridging the freedom allowed to it by the common law. 

Although it will be shewn, in examining the second of these posi- 
tions, that the amendment is a denial to congress of all power over the 
press, it may not be useless to make the following observations on the 
first of them. 

It is deemed to be a sound opinion, that the sedition act, in its defi- 
nition of some of the crimes created, is an abridgment of the freedom 



51 

of publication, recognized by principles of the common law in Eng- 
land. 

The freedom of the press under the common law, is, in the defences 
of the sedition act, made to consist in an exemption from all previous 
restraint on printed publications, by persons authorized to inspect and 
prohibit them. It appears to the committee, that this idea of the free- 
dom of the press, can never be admitted to be the American idea of 
it : since a law inflicting penalties on printed publications, would have 
a similar effect with a law authorizing a previous restraint on them. 
It would seem a mockery to say, that no law should be passed, pre- 
venting publications from being made, but that laws might be passed 
for punishing them in case they should be made. 

The essential difference between the British government, and the 
American constitutions, will place this subject in the clearest light. 

In the British government, the danger of encroachments on the 
rights of the people, is understood to be confined to the executive ma- 
gistrate. The representatives of the people in the legislature, are not 
only exempt themselves, from distrust, but are considered as sufficient 
guardians of the rights of their constituents against the danger from 
the executive. Hence it is a principle, that the parliament is unlimited 
in its power ; or, in their own language, is omnipotent. Hence too, 
all the ramparts for protecting the rights of the people, such as their 
magna charta, their bill of rights, &c. are not reared against the par- 
liament, but against the royal prerogative. They are merely legisla- 
tive precautions, against executive usurpations. Under such a govern- 
ment as this, an exemption of the press from previous restraint by 
licensers appointed by the king, is all the freedom that can be secured 
to it. 

In the United States, the case is altogether different. The people, 
not the government, possess the absolute sovereignty. The legislature, 
no less than the executive, is under limitations of power. Encroach- 
ments are regarded as possible from the one, as well as from the other. 
Hence in the United States, the great and essential rights of the peo- 
ple are secured against legislative, as well as against executive ambi- 
tion. They are secured, not by laws paramount to prerogative, but 
by constitutions paramount to laws. This security of the freedom of 
the press requires, that it should be exempt, not only from previous 
restraint by the executive, as in Great Britain ; but from legislative 
restraint also; and this exemption, to be effectual, must be an exemp- 
tion, not only from the previous inspection of licensers, but from the 
subsequent penalty of laws. 

The state of the press, therefore, under the common law, cannot in 
this point of view, be the standard of its freedom in the United States. 

But there is another view, under which it may be necessary to con- 
sider this subject. It may be alleged, that although the security for 
the freedom of the press, be different in Great Britain and in this 
country; being a legal security only in the former, and a constitutional 
security in the latter ; and although there may be a further difference, 
in an extension of the freedom of the press here, beyond an exemp- 
tion from previous restraint, to an exemption from subsequent penal- 
ties also ; yet that the actual legal freedom of the press, under the 



52 

common law, must determine the degree of freedom which is meant 
by the terms, and which is constitutionally secured against both pre- 
vious and subsequent restraints. 

The committee are not unaware of the difficulty of all general ques- 
tions, which may turn on the proper boundary between the liberty and 
licentiousness of the press. They will leave it therefore for conside- 
ration only, how far the difference between the nature of the British 
government, and the nature of the American governments, and the 
practice under the latter, may shew the degree of rigor in the former, 
to be inapplicable to, and not obligatory in the latter. 

The nature of governments elective, limited and responsible, in all 
their branches, may well be supposed to require a greater freedom of 
animadversion than might be tolerated by the genius of such a govern- 
ment as that of Great Britain. In the latter, it is a maxim, that the 
king, an hereditary, not a responsible magistrate, can do no wrong ; 
and that the legislature, which in two thirds of its composition, is also 
hefeditary, not responsible, can do what it pleases. In the United 
States, the executive magistrates are not held to be infallible, nor the 
legislatures to be omnipotent; and both being elective, are both respon- 
sible. Is it not natural and necessary, under such different circum- 
stances, that a different degree of freedom, in the use of the press, 
should be contemplated ? 

Is not such an. inference favored' by what is observable in Great 
Britain itself? Notwithstanding the general doctrine of the common 
law, on the subject of the press, and the occasional punishment of 
those, who use it with. a freedom offensive to the government; it is 
well known, that with respect to the responsible members of the go- 
vernment, where the reasons operating here, become applicable there, 
the freedom exercised by the press, and protected by the public opinion, 
far exceeds the limits prescribed by the ordinary rules of law. The 
ministry, who are responsible to impeachment, are at all times, ani- 
madverted on, by the press, with peculiar freedom; and during the 
elections for the house of commons, the other responsible part of the 
government, the press is employed with as little reserve towards the 
candidates. 

The practice in America must be entitled to much more respect. 
In every state, probably, in the union, the press has exerted a freedom 
in canvassing the merits and measures of public men, of every de- 
scription, which has not been confined to the strict limits of the com- 
mon law. On this footing, the freedom of the press has stood ; on 
this footing it yet stands. And it will not be a breach, either of truth 
or of candor, to say, that no persons or presses are in the habit of more 
unrestrained animadversions on the proceedings and functionaries of 
the state governments, than the persons and presses most zealous in 
vindicating the act of congress for punishing similar animadversions 
on the government of the United States. 

The last remark will not be understood, as claiming for the state 
governments, an immunity greater than they have heretofore enjoyed. 
Some degree of abuse is inseparable from, the proper use of every 
thing; and in no instance is this more true, than in that of the press. 
It has accordingly been decided by the practice of the states, that it 



53 

is better to leave a few of its noxious branches, to their luxuriant 
growth, than by pruning them away, to injure the vigor of those 
yielding the proper fruits. And can the wisdom of this policy be 
doubted by any who reflect, that to the press alone, chequered as it is 
with abuses, the world is indebted for all the triumphs which have 
been gained by reason and humanity, over error and oppression ; who 
reflect, that to the same beneficent source, the United States owe much 
of the lights which conducted them to the rank of a free and inde- 
pendent nation; and which have improved* their political system, into 
a shape so auspicious to their happiness. Had " sedition acts," for- 
bidding every publication that might bring the constituted agents into 
contempt or disrepute, or that might excite the hatred of the people 
against the authors of unjust or pernicious measures, been uniformly 
enforced against the press ; might not the United States have been lan- 
guishing at this day, under the infirmities of a sickly confederation? 
Might they not possibly be miserable colonies, groaning under a fo- 
reign yoke? | 

To these observations, one fact will be added, which demonstrates 
that the common law cannot be admitted as the universal expositor of 
American terms, which may be the same with those contained in that 
law. The freedom of conscience, and of religion, are found in the 
same instruments which assert the freedom of the press. It will never 
be admitted, that the meaning of the former, in the common law of 
England, is to limit their meaning in the United States. 

Whatever weight may be allowed to these considerations, the com- 
mittee do not, however, by any means intend to rest the question on 
them. They contend that the article of amendment, instead of sup- 
posing in congress a power that might be exercised over the press, pro- 
vided its freedom was not abridged, was meant as a positive denial to 
congress, of any power whatever on the subject. 

To demonstrate that this was the true object of the article, it will 
be sufficient to recall the circumstances which led to it, and to refer 
to the explanation accompanying the article. 

When the constitution was under the discussions which preceded 
its ratification, it is well known, that great apprehensions were ex- 
pressed by many, lest the omission of some positive exception from the 
powers delegated, of certain rights, and of the freedom of the press 
particularly, might expose them to the danger of being drawn by con- 
struction within some of the powers vested in congress ; more espe- 
cially of the power to make all laws necessary and proper for carrying 
their other powers into execution. In reply to this objection, it was 
invariably urged to be a fundamental and characteristic principle of 
the constitution, that all powers not given by it, were reserved ; that 
no powers were given beyond those enumerated in the constitution, 
and such as were fairly incident to them ; that the power over the 
rights in question, and particularly over the press, was neither among 
the enumerated powers, nor incident to any of them ; and consequently 
that an exercise of any such power, would be a manifest usurpation. 
It is painful to remark, how much the arguments now employed in be- 
half of the sedition act, are at variance with the reasoning which then 
justified the constitution, and invited its ratification. 



54 

From this posture of the subject, resulted the interesting question 
in so many of the conventions, whether the doubts and dangers as- 
cribed to the constitution, should be removed by any amendments pre- 
vious to the ratification, or be postponed, in confidence that as far as 
they might be proper, they would be introduced in the form provided 
by the constitution. The latter course was adopted; and in most of 
the states, the ratifications were followed by propositions and instruc- 
tions for rendering the constitution more explicit, and more safe to the 
rights not meant to be delegated by it. Among those rights, the free- 
dom of the press, in most instances, is particularly and emphatically 
mentioned. The firm and very pointed manner, in which it is asserted 
in the proceedings of the convention of this state, will be hereafter 
seen. 

In pursuance of the wishes thus expressed, the first congress that 
assembled under the constitution, proposed certain amendments which 
have since, by the necessary ratifications, been made a part of it ; 
among which amendments, is the article containing, among other 
prohibitions on the congress, an express declaration that they should 
make no law abridging the freedom of the press. 

Without tracing farther the evidence on this subject, it would seem 
scarcely possible to doubt, that no power whatever over the press, was 
supposed to be delegated by the constitution, as it originally stood ; 
and that the amendment was intended as a positive and absolute re- 
servation of it. 

But the evidence is still stronger. The proposition of amendments 
made by congress, is introduced in the following terms : " The con- 
ventions of a number of the states having at the time of their adopt- 
ing the constitution, expressed a desire, in order to prevent miscon- 
structions or abuse of its powers, that further declaratory and re- 
strictive clauses should be added ; and as extending the ground of 
'public confidence in the government, will best ensure the beneficent ends 
of its institutions." 

Here is the most satisfactory and authentic proof, that the several 
amendments proposed, were to be considered as either declaratory or 
restrictive ; and whether the one or the other, as corresponding with 
the desire expressed by a number of the states, and as extending the 
ground of public confidence in the government. 

Under any other construction of the amendment relating to the 
press, than that it declared the press to be wholly exempt from the 
power of congress, the amendment could neither be said to corres- 
pond with the desire expressed by a number of the states, nor be cal- 
culated to extend the ground of public confidence in the govern- 
ment. 

Nay more ; the construction employed to justify the " sedition act," 
would exhibit a phenomenon, without a parallel in the political world. 
It would exhibit a number of respectable states, as denying first that 
any power over the press was delegated by the constitution ; as pro- 
posing next, that an amendment to it, should explicitly declare that 
no such power was delegated ; and finally, as concurring in an 
amendment actually recognizing or delegating such a power. 



55 

Is then the federal government, it will be asked, destitute of every 
authority for restraining the licentiousness of the press, and for shield- 
ing itself against the libellous attacks which may be made on those 
who administer it ? 

The constitution alone can answer this question. If no such power 
be expressly delegated, and it be not both necessary and proper to 
carry into execution an express power ; above all, if it be expressly 
forbidden by a declaratory amendment to the constitution, the an- 
swer must be, that the federal government is destitute of all such 
authority. 

And might it not be asked in turn, whether it is not more probable, 
under all the circumstances which have been reviewed, that the 
authority should be withheld by the constitution, than that it should 
be left to a vague and violent construction ; whilst so much pains 
were bestowed in enumerating other powers, and so many less impor- 
tant powers are included in the enumeration? 

Might it not be likewise asked, whether the anxious circumspec- 
tion which dictated so many peculiar limitations on the general autho- 
rity, would be unlikely to exempt the press altogether from that 
authority ? The peculiar magnitude of some of the powers necessa- 
rily committed to the federal government; the peculiar duration re- 
quired for the functions of some of its departments ; the peculiar dis- 
tance of the seat of its proceedings from the great body of its con- 
stituents ; and the peculiar difficulty of circulating an adequate know- 
ledge of them through any other channel ; will not these considera- 
tions, some or other of which produced other exceptions from the 
powers of ordinary governments, all together, account for the policy 
of binding the hand of the federal government, from touching the 
channel which alone can give efficacy to its responsibility to its con* 
stituents ; and of leaving those who administer it, to a remedy for 
their injured reputations, under the same laws, and in the same tribu- 
nals, which protect their lives, their liberties and their properties? 

But the question does not turn either on the wisdom of the consti- 
tution, or on the policy which gave rise to its particular organization. 
It turns on the actual meaning of the instrument ; by which it has 
appeared, that a power over the press is clearly excluded, from the 
number of powers delegated to the federal government. 

3. And in the opinion of the committee, well may it be said, as 
the resolution concludes with saying, that the unconstitutional power 
exercised over the press by the " sedition act," ought " more than any 
other, to produce universal alarm ; because it is levelled against that 
right of freely examining public characters and measures, and of free 
communication among the people thereon, which has ever been justly 
deemed the only effectual guardian of every other right." 

Without scrutinizing minutely into all the provisions of the " sedi- 
tion act," it will be sufficient to cite so much of section 2, as follows : 
" And be it further enacted, that if any person shall write, print, 
utter or publish, or shall cause or procure to be written, printed, 
uttered or published, or shall knowingly and willingly assist or aid in 
writing, printing, uttering or publishing any false, scandalous and 
malicious writing or writings against the government of the United 



56 

States, or either house of the congress of the United States, or the 
president of the United States, with an intent to defame the said go- 
vernment, or either house of the said congress, or the president, or to 
bring them, or either of them, into contempt or disrepute ; or to excite 
against them, or either, or any of them, the hatred of the good people 
of the United States, 8fc. Then such person being thereof convicted 
before any court of the United States, having jurisdiction thereof, 
shall be punished by a fine not exceeding two thousand dollars, and 
by imprisonment not exceeding two years." 

On this part of the act, the following observations present them- 
selves : 

1. The constitution supposes that the president, the congress, and 
each of its houses may not discharge their trusts, either from defect 
of judgment or other causes. Hence, they are all made responsible 
to their constituents, at the returning periods of election ; and the 
president, who is singly entrusted with very great powers, is, as a fur- 
ther guard, subjected to an intermediate impeachment. 

2. Should it happen, as the constitution supposes it may happen, 
that either of these branches of the government may not have duly 
discharged its trust, it is natural and proper, that according to the 
cause and degree of their faults, they should be brought into contempt 
or disrepute, and incur the hatred of the people. 

3. Whether it has, in any case, happened that the proceedings of 
either, or all of those branches, evinces such a violation of duty as to 
justify a contempt, a disrepute or hatred among the people, can only 
be determined by a free examination thereof, and a free communica- 
tion among the people thereon. 

4. Whenever it may have actually happened, that proceedings of 
this sort are chargeable on all or either of the branches of the govern- 
ment, it is the duty as well as right of intelligent and faithful citizens, 
to discuss and promulge them freely, as well to control them by the 
censorship of the public opinion, as to promote a remedy according to 
the rules of the constitution. And it cannot be avoided, that those 
who are to apply the remedy must feel, in some degree, a contempt 
or hatred against the transgressing party. 

5. As the act was passed on July 14, 1798, and is to be in force 
-until March 3, 1801, it was of course, that during its continuance, 

two elections of the entire house of representatives, an election of a 
part of the senate, and an election of a president, were to take place. 

6. That consequently, during all these elections, intended by the 
constitution to preserve the purity, or to purge the faults of the ad- 
ministration, the great remedial rights of the people were to be exer- 
cised, and the responsibility of their public agents to be screened, 
under the penalties of this act. 

May it not be asked of every intelligent friend to the liberties of 
his country, whether the power exercised in such an act as this, ought 
not to produce great and universal alarm? Whether a rigid execu- 
tion of such an act, in time past, would not have repressed that infor- 
mation and communication among the people, which is indispensable 
to the just exercise of their electoral rights 1 And whether such an 
act, if made perpetual, and enforced with rigor, would not, in time to 



57 

come, either destroy our free system of government, or prepare a con- 
vulsion that might prove equally fatal to it? 

Iq answer to such questions, it has been pleaded that the writings 
and publications forbidden by the act, are those only which are false 
and malicious, and intended to defame; and merit is claimed for the 
privilege allowed to authors to justify, by proving the truth of their 
publications, and for the limitations to which the sentence of fine and 
imprisonment is subjected. 

To those who concurred in the act, under the extraordinary belief 
that the option lay between the passing of such an act, and leaving in 
force the common law of libels, which punishes truth equally with 
falsehood, and submits the fine and imprisonment to the indefinite 
discretion of the court, the merit of good intentions ought surely not 
to be refused. A like merit may perhaps be due for the discontinu- 
ance of the corporal punishment, which the common law also leaves 
to the discretion of the court. This merit of intention, however, 
would have been greater, if the several mitigations had not been 
limited to so short a period ; and the apparent inconsistency would 
have been avoided, between justifying the act at one time, by con- 
trasting it with the rigors of the common law, otherwise in force, and 
at another time by appealing to the nature of the crisis, as requiring 
the temporary rigor exerted by the act. 

But, whatever may have been the meritorious intentions of all or 
any who contributed to the sedition act, a very few reflections will 
prove, that its baneful tendency is little diminished by the privilege 
of giving in evidence the truth of the matter contained in political 
writings. 

In the first place, where simple and naked facts alone are in ques- 
tion, there is sufficient difficulty in some cases, and sufficient trouble 
and vexation in all, of meeting a prosecution from the government, 
with the full and formal proof necessary in a court of law. 

But in the next place, it must be obvious to the plainest minds, that 
opinions, and inferences; and conjectural observations, are not only in 
many cases inseparable from the facts, but may often be more the ob- 
jects of the prosecution than the facts themselves ; or may even be 
altogether abstracted from particular facts ; and that opinions and in- 
ferences, and conjectural observations, cannot be subjects of that kind 
of proof which appertains to facts, before a court of law. 

Again : It is no less obvious, that the intent to defame or bring into 
contempt or disrepute, or hatred, which is made a condition of the 
offence created by the act, cannot prevent its pernicious influence, on 
the freedom of the press. For, omitting the enquiry, how far the ma- 
lice of the intent is an inference of the law from the mere publication, 
it is manifestly impossible to punish the intent to bring those who ad- 
minister the government into disrepute or contempt, without striking 
at the right of freely discussing public characters and measures : be- 
cause those who engage in such discussions, must expect and intend 
to excite these unfavorable sentiments, so far as they may be thought 
to be deserved. To prohibit, therefore, the intent to excite those un- 
favorable sentiments against those who administer the government, is 
equivalent to a prohibition of the actual excitement of them ; and to 
8 



58 

prohibit the actual excitement of them, is equivalent to a prohibition 
of discussions having that tendency and effect ; which, again, is 
equivalent to a protection of those who administer the government, if 
they should at any time deserve the contempt or hatred of the people, 
against being exposed to it, by free animadversions on their characters 
and conduct. Nor can there be a doubt, if those in public trust be 
shielded by penal laws from such strictures of the press, as may ex- 
pose them to contempt or disrepute, or hatred, where they may de- 
serve it, that in exact proportion as they may deserve to be exposed, 
will be the certainty and criminality of the intent to expose them and 
the vigilance of prosecuting and punishing it; nor a doubt, that a go- 
vernment thus intrenched in penal statutes, against the just and natural 
effects of a culpable administration, will easily evade the responsibility, 
which is essential to a faithful discharge of its duty. 

Let it be recollected, lastly, that the right of electing the members 
of the government, constitutes more particularly the essence of a 'free 
and responsible government. The value and efficacy of this right, de- 
pends on the knowledge of the comparative merits and demerits of the 
candidates for public trust; and on the equal freedom, consequently, 
of examining and discussing these merits and demerits of the candi- 
dates respectively. It has been seen, that a number of important elec- 
tions will take place whilst the act is in force, although it should not 
be continued beyond the term to which it is limited. Should there 
happen, then, as is extremely probable in relation to some or other of 
the branches of the government, to be competitions between those 
who are, and those who are not, members of the government, what 
will be the situations of the competitors? Not equal; because the 
characters of the former will be covered by the " sedition act" from 
animadversions exposing them to disrepute among the people ; whilst 
the latter may be exposed to the contempt and hatred of the people, 
without a violation of the act. What will be the situation of the peo- 
ple? Not free ; because they will be compelled to make their elec- 
tion between competitors, whose pretensions they are not permitted by 
the act, equally to examine, to discuss, arid to ascertain. And from 
both these situations, will not those in power derive an undue advan- 
tage for continuing themselves in it; which by impairing the right of 
election, endangers the blessings of the government founded on it? 

It is with justice, therefore, that the general assembly have affirmed 
in the resolution, as well that the right of freely examining public cha- 
racters and measures, and of free communication thereon, is the only 
effectual guardian of every other right, as that this particular right is 
levelled at, by the power exercised in the " sedition act." 

The resolution next in order is as follows : 

That, this state having by its convention, which ratified the federal 
constitution, expressly declared, that among other essential rights, "the 
liberty of conscience and of the press cannot be cancelled, abridged, 
restrained or modified by any authority of the United States," and 
from its extreme anxiety to guard these rights from every possible at- 
tack of sophistry and ambition, having with other states, recommended 
an amendment for that purpose, ivhich amendment was, in due time, 
annexed to the constitution, it would mark a reproachful inconsistency, 



59 

and criminal degeneracy , if an indifference were now shewn, to tJte 
most palpable violation of one of the rights thus declared and secured ; 
and to the establishment of a precedent, which may be fatal to the 
other. 

To place this resolution in its just light, it will be necessary to re- 
cur to the act oP ratification by Virginia, which stands in the ensuing 
form : 

We, the delegates of the people of Virginia, duly elected in pursu- 
ance of a recommendation from the general assembly, and now met in 
convention, having fully and freely investigated and discussed the 
proceedings of the federal convention, and being prepared as well as 
the most mature deliberation hath enabled us to decide thereon; DO, 
in the name and in behalf of the people of Virginia, declare and make 
known, that the powers granted under the constitution, being derived 
from the people of the United States, may be resumed by them, whenso- 
ever the same shall be perverted to their injury or oppression ; and that 
every power not granted thereby, remains with them, and at their will. 
That therefore, no right of any denomination can be cancelled, abridged, 
restrained or modified, by the congress, by the senate or house of re- 
presentatives acting in any capacity, by the president, or any depart- 
ment or officer of the United States, except in those instances in which 
power is given by the constitution for those purposes ; and, that among 
other essential rights, the liberty of conscience and of the press, cannot 
be cancelled, abridged, restrained or modified by any authority of the 
United States. 

Here is an express and solemn declaration by the convention of 
the state, that they ratified the constitution in the sense, that no right 
of any denomination can be cancelled, abridged, restrained or modified 
by the government of the United States or any part of it ; except in 
those instances in which power is given by the constitution ; and in 
the sense particularly, " that among other essential rights, the liberty 
of conscience and freedom of the press cannot be cancelled, abridged, 
restrained or modified, by any authority of the United States." 

Words could not well express, in a fuller or more forcible manner, 
the understanding of the convention, that the liberty of conscience 
and the freedom of the press, were equally and completely exempted 
from all authority whatever of the United States. 

Under art anxiety to guard more effectually these rights against 
every possible danger, the convention, after ratifying the constitution, 
proceeded to prefix to certain amendments proposed by them, a decla- 
ration of rights, in which are two articles providing, the one for the 
liberty of conscience, the other for the freedom of speech and of the 
press. 

Similar recommendations having proceeded from a number of other 
states; and congress, as has been seen, having in consequence 
thereof, and with a view to extend the ground of public confidence, 
proposed among other declaratory and restrictive clauses, a clause ex- 
pressly securing the liberty of conscience and of the press; and Vir- 
ginia having concurred in the ratifications which made them a part 
of the constitution ; it will remain with a candid public to decide, 
whether it would not mark an inconsistency and degeneracy, if an in- 



60 

difference were now shewn to a palpable violation of one of those 
rights, the freedom of the press ; and to a precedent therein, which 
may be fatal to the other, the free exercise of religion. 

That the precedent established by the violation of the former of 
these rights, may, as is affirmed by the resolution, be fatal to the lat- 
ter, appears to be demonstrable, by a comparison of the grounds on 
which they respectively rest ; and from the scope of reasoning, by 
which the power over the former has been vindicated. 

First. Both of these rights, the liberty of conscience and of the 
press, rest equally on the original ground of not being delegated by 
the constitution, and consequently withheld from the government. 
Any construction, therefore, that would attack this original security 
for the one, must have the like effect on the other. 

Secondly. They are both equally secured by the supplement to the 
constitution ; being both included in the same amendment, made at 
the same time, and by the same authority. Any construction or ar- 
gument, then, which would turn the amendment into a grant or ac- 
knowledgment of power with respect to the press, might be equally 
applied to the freedom of religion. 

Thirdly. If it be admitted that the extent of the freedom of the 
press, secured by the amendment, is to be measured by the common 
law on this subject, the same authority may be resorted to, for the 
standard which is to fix the extent of the " free exercise of religion." 
It cannot be necessary to say what this standard would be ; whether 
the common law be taken solely as the unwritten, or as varied by the 
written law of England. 

Fourthly. If the words and phrases in the amendment, are to be 
considered as chosen with a studied discrimination, which yields an 
argument for a power over the press, under the limitation that its 
freedom be not abridged, the same argument results from the same 
consideration, for a power over the exercise of religion, under the 
limitation that its freedom be not prohibited. 

For, if congress may regulate the freedom of the press, provided 
they do not abridge it, because it is said only "they shall not abridge 
it," and is not said, " they shall make no law respecting it," the 
analogy of reasoning is conclusive, that congress may regulate and 
even abridge the free exercise of religion, provided they do not pro- 
hibit it, because it is said only " they shall not prohibit it," and is 
not said, " they shall make no law respecting, or no law abridging it." 

The general assembly were governed by the clearest reason, then, 
in considering the " sedition act," which legislates on the freedom of 
the press, as establishing a precedent that may be fatal to the liberty 
of conscience; and it will be the duty of all, in proportion as they 
value the security of the latter, to take the alarm at every encroach- 
ment on the former. 

The two concluding resolutions only remain to be examined. 
They are in the words following : 

That the good people of this commonwealth, having ever felt and 
continuing to feel the most sincere affection for their brethren of the 
other states ; the truest anxiety for establishing and perpetuating the 
unioji of all ; and the most scrupulous fidelity to that constitution, 



61 

which is the pledge of mutual friendship, and the instrument of mu- 
tual happiness ; the general assembly doth solemnly appeal to the like 
dispositions in the other states, in confidence that they will concur with 
this commonwealth in declaring, as it does hereby declare, that the acts 
aforesaid are unconstitutional; and, that the necessary and proper 
measures will be taken by each, for co-operating with this state, in 
maintaining unimpaired, the authorities, rights, and liberties reserved 
in the states respectively, or to the people. 

That the governor be desired to transmit a copy of the foregoing 
resolutions to the executive authority of each of the other states, with 
a request that the same may be communicated to the legislature thereof; 
and that a copy be furnished to each of the senators and representa- 
tives, representing this state in the congress of the United States. 

The fairness and regularity of the course of proceeding, here pur- 
sued, have not protected it against objections even from sources too re- 
spectable to be disregarded. 

It has been said, that it belongs to the judiciary of the United 
States, and not the state legislatures, to declare the meaning of the 
federal constitution. 

But a declaration that proceedings of the federal government are 
not warranted by the constitution, is a novelty neither among the citi- 
zens, nor among the legislatures of the states ; nor are the citizens or 
the legislature of Virginia, singular in the example of it. 

Nor can the declarations of either, whether affirming or denying 
the constitutionality of measures of the federal government ; or whe- 
ther made before or after judicial decisions thereon, be deemed in 
any point of view, an assumption of the office of the judge. The 
declarations in such cases, are expressions of opinion, unaccompanied 
with any other effect than what they may produce on opinion, by ex- 
citing reflection. The expositions of the judiciary, on the other hand, 
are carried into immediate effect by force. The former may lead to 
a change in the legislative expression of the general will ; possibly to 
a change in the opinion of the judiciary ; the latter enforces the ge- 
neral will, whilst that will and tljat opinion continue unchanged. 

And if there be no impropriety in declaring the unconstitutionality 
of proceedings in the federal government, where can be the impro- 
priety of communicating the declaration to other states, and inviting 
their concurrence in a like declaration 1 What is allowable for one 
must be allowable for all ; and a free communication among the 
states, where the constitution imposes no restraint, is as allowable 
among the state governments as among other public bodies or private 
citizens. This consideration derives a weight, that cannot be denied 
to it, from the relation of the state legislatures to the federal legisla- 
ture, as the immediate constituents of one of its branches. 

The legislatures of the states have a right also to originate amend- 
ments to the constitution, by a concurrence of two thirds of the whole 
number, in applications to congress for the purpose. When new 
states are to be formed by a junction of two or more states or parts of 
states, the legislatures of the states concerned are, as well as con- 
gress, to concur in the measure. The states have a right also to en- 
ter into agreements or compacts, with- the consent of congress. In 



62 

all such cases a communication among them results from the object 
which is common to them. 

It is lastly to be seen, whether the confidence expressed by the re- 
solution, that the necessary and proper measures would be taken by 
the other states for co-operating with Virginia in maintaining the 
rights reserved to the states, or to the people, be in any degree liable 
to the objections which have been raised against it. 

If it be liable to objection, it must be because either the object or 
the means are objectionable. 

The object being to maintain what the constitution has ordained, is 
in itself a laudable object. 

The means are expressed in the terms " the necessary and proper 
measures." A proper object was to be pursued, by means both ne- 
cessary and proper. 

To find an objection, then, it must be shown that some meaning 
was annexed to these general terms, which was not proper ; and, for 
this purpose, either that the means used by the general assembly were 
an example of improper means, or that there were no proper means 
to which the terms could refer. 

In the example given by the state, of declaring the alien and sedi- 
tion acts to be unconstitutional, and of communicating the declaration 
to the other states, no trace of improper means has appeared. And 
if the other states had concurred in making a like declaration, sup- 
ported too by the numerous applications flowing immediately from the 
people, it can scarcely be doubted, that these simple means would have 
been as sufficient, as they are unexceptionable. 

It is no less certain that other means might have been employed, 
which are strictly within the limits of the constitution. The legisla- 
tures of the states might have made a direct representation to congress, 
with a view to obtain a rescinding of the two offensive acts ; or, they 
might have represented to their respective senators in congress, their 
wish, that, two thirds thereof would propose an explanatory amend- 
ment to the constitution ; or two thirds of themselves, if such had been 
their option, might, by an application to congress, have obtained a 
convention for the same object. 

These several means, though not equally eligible in themselves, nor 
probably, to the states, were all constitutionally open for consideration. 
And if the general assembly, after declaring the two acts to be un- 
constitutional, the first and most obvious proceeding on the subject, 
did not undertake to point out to the other states, a choice among the 
farther measures that might become necessary and proper, the reserve 
will not be misconstrued by liberal minds into any culpable imputation. 

These observations appear to form a satisfactory reply to every ob- 
jection which is not founded on a misconception of the terms employed 
in the resolutions. There is one other, however, which may be of too 
much importance not to be added. It cannot be forgotten, that 
among the arguments addressed to those who apprehended danger to 
liberty from the establishment of the general government over so great 
a country, the appeal was emphatically made to the intermediate 
existence of the state governments, between the people and that go- 
vernment, to the vigilance with which they would descry the first 



63 

symptoms of usurpation, and to the promptitude with which they would 
sound the alarm to the public. This argument was probably not with- 
out its effect ; and if it was a proper one then, to recommend the es- 
tablishment of the constitution, it must be a proper one now, to as- 
sist in its interpretation. 

The only part of the two concluding resolutions that remains to be 
noticed, is the repetition in the first, of that warm affection to the 
union and its members, and of that scrupulous fidelity to the constitu- 
tion, which have been invariably felt by the people of this state. As 
the proceedings were introduced with these sentiments, they could not 
be more properly closed than in the same manner. Should there be 
any so far misled as to call in question the sincerity of these profes- 
sions, whatever regret may be excited by the error, the general assem- 
bly cannot descend into a discussion of it. Those, who have listened 
to the suggestion, can only be left to their own recollection of the part 
which this state has borne in the establishment of our national inde- 
pendence, in the establishment of our national constitution, and in 
maintaining under it the authority and laws of the union, without a 
single exception of internal resistance or commotion. By recurring 
to these facts, they will be able to convince themselves, that the re- 
presentatives of the people of Virginia, must be above the necessity 
of opposing any other shield to attacks on their national patriotism, 
than their own consciousness, and the justice of an enlightened pub- 
lic; who will perceive in the resolutions themselves, the strongest evi- 
dence of attachment both to the constitution and to the union, since 
it is only by maintaining the different governments and departments 
within their respective limits, that the blessings of either can be per- 
petuated. 

The extensive view of the subject thus taken ..by the committee, has 
led them to report to the house, as the result of the whole, the follow- 
ing resolution : 

Resolved, That the general assembly, having carefully and respect- 
fully attended to the proceedings of a number of the states, in answer 
to their resolutions of December 21, 1798, and having accurately and 
fully re-examined and re-considered the latter, find it to be their indis- 
pensable duty to adhere to the same, as founded in truth, as consonant 
with the constitution, and as conducive to its preservation ; and more 
especially to be their duty to renew, as they do hereby renew, their 
protest against " the alien and sedition acts," as palpable and alarming 
infractions of the constitution. 



64 

KENTUCKY LEGISLATURE. 

IN THE HOUSE OF REPRESENTATIVES, 
November 10, 1798. 



The house, according to the standing order of the day, resolved 
itself into a committee of the whole, on the state of the commonwealth, 



Mr. CALDWELL in the chair 



And after some time spent therein, the speaker resumed the chair, 
and Mr. Caldwell reported, that the committee had, according to order, 
had under consideration the governor's address, and had come to the 
following resolutions thereupon, which he delivered in at the clerk's 
table, where they were twice read and agreed to by the house. 

1. Resolved, That the several states composing the United States 
of America, are not united on the principle of unlimited submission to 
their general government ; but that by compact under the style and title 
of a constitution for the United States, and of amendments thereto, they 
constituted a general government for special purposes, delegated to that 
government certain definite powers, reserving, each state to itself, the 
residuary mass of right to their own self-government ; and that whenso- 
ever the general government assumes undelegated powers, its acts are 
unauthoritative, void, and of no force : That to this compact each state 
acceded as a state, and is an integral party, its co-states forming as to 
itself, the other party : That the government created by this compact 
was not made the exclusive or final judge of the extent of the powers 
delegated to itself; since that would have made its discretion, and not 
the constitution, the measure of its powers ; but that as in all other 
cases of compact among parties having no common judge, each party 
has an equal right to judge for itself, as well of infractions, as of the 
mode and measure of redress. 

~~" 2. Resolved, That the constitution of the United States having de- 
legated to congress a power to punish treason, counterfeiting the se- 
curities and current coin of the United States, piracies and felonies 
committed on the high seas, and offences against the laws of nations, 
and no other crimes whatever, and it being true as a general principle, 
and one of the amendments to the constitution having also declared, 
" that the powers not delegated to the United States by the constitu- 
tion, nor prohibited by it to the states, are reserved to the states re- 
spectively, or to the people ;" therefore also the same act of congress, 
passed on the 14th day of July, 1798, and entitled, " an act in addi- 
tion to the act entitled, an act for the punishment of certain crimes 
against the United States ;" as also the act passed by them on the 27th 
day of June, 1798, entitled, " an act to punish frauds committed on 



65 

the bank of the United States," (and all other their acts which assume 
to create, define, or punish crimes other than those enumerated in the 
constitution,) are altogether void and of no force, and that the power 
to create, define, and punish such other crimes is reserved, and of 
right, appertains solely and exclusively to the respective states, each 
within its own territory. 

3. Resolved, That it is true as a general principle, and is also ex- 
pressly declared by one of the amendments to the constitution, that 
" the powers not delegated to the United States by the constitution, 
nor prohibited by it to the states, are reserved to the states respectively, 
or to the people ;" and that no power over the freedom of religion, 
freedom of speech, or freedom of the press, being delegated to the 
United States by the constitution, nor prohibited by it to the states, all 
lawful powers respecting the same did of right remain, and were re- 
served to the states, or to the people : That thus was manifested their 
determination to retain to themselves, the right of judging how far the 
licentiousness of speech and of the press, may be abridged without 
lessening their useful freedom, and how far those abuses which cannot 
be separated from their use, should be tolerated rather than the use be 
destroyed ; and thus also, they guarded against all abridgment by the 
United States of the freedom of religious opinions and exercises, and 
retained to themselves the right of protecting the same, as this state 
by a law passed on the general demand of its citizens, had already 
protected them from all human restraint or interference : And that in 
addition to this general principle and express declaration, another and 
more special provision has been made by one of the amendments to 
the constitution, which expressly declares, that "congress shall make 
no law respecting an establishment of religion, or prohibiting the free 
exercise thereof, or abridging the freedom of speech, or of the press," . 
thereby guarding in the same sentence, and under the same words, 
the freedom of religion, of speech, and of the press, insomuch, that 
whatever violates either, throws down the sanctuary which covers the 
others, and that libels, falsehoods, and defamation, equally with heresy 
and false religion, are withheld from the cognizance of federal tribu- 
nals : That therefore the act of the congress of the United States, 
passed on the 14th day of July, 1798, entitled, "an act in addition to 
the act for the punishment of certain crimes against the United 
States," which does abridge the freedom of the press, is not law, but 
is altogether void and of no effect. 

4. Resolved, That alien friends are under the jurisdiction and pro- 
tection of the laws of the state wherein they are ; that no power over 
them has been delegated to the United States, nor prohibited to the 
individual states distinct from their power over citizens; and it being 
true as a general principle, and one of the amendments to the consti- 
tution having also declared, that " the powers not delegated to the 
United States by the constitution, nor prohibited by it to the states, 
are reserved to the states respectively or to the people," the act of the 
congress of the United States, passed on the 22d day of June, 1798, 
entitled " an act concerning aliens," which assumes power over alien 
friends not delegated by the constitution, is not law, but is altogether 
void and of no force. 

9 



66 

5. Resolved, That in addition to the general principle as well as 
the express declaration, that powers not delegated are reserved, ano- 
ther and more special provision inserted in the constitution from 
abundant caution has declared, " that the migration or importation of 
such persons as any of the states now existing shall think proper to 
admit, shall not be prohibited by the congress prior to the year 1808 :" 
That this commonwealth does admit the migration of alien friends 
described as the subject of the said act concerning aliens ; that a pro- 
vision against prohibiting their migration, is a provision against all 
acts equivalent thereto, or it would be nugatory ; that to remove them 
when migrated is equivalent to a prohibition of their migration, and 
is therefore contrary to the said provision of the constitution, and 
void. 

6. Resolved, That the imprisonment of a person under the protec- 
tion of the laws of this commonwealth on his failure to obey the sim- 
ple order of the president, to depart out of the United States, as is 
undertaken by the said act, entitled "an act concerning aliens," is 
contrary to the constitution, one amendment to which has provided, 
that " no person shall be deprived of liberty without due process of 
law," and that another having provided, " that in all criminal prose- 
cutions, the accused shall enjoy the right to a public trial by an 
impartial jury, to be informed of the nature and cause of the accusa- 
tion, to be confronted with the witnesses against him, to have com- 
pulsory process for obtaining witnesses in his favour, and to have the 
assistance of counsel for his defence," the same act undertaking to 
authorize the president to remove a person out of the United States 
who is under the protection of the law, on his own suspicion, without 
accusation, without jury, without public trial, without confrontation of 
the witnesses against him, without having witnesses in his favour, 
without defence, without counsel, is contrary to these provisions also 
of the constitution, is therefore not law, but utterly void and of no 
force. 

That transferring the power of judging any person who is under 
the protection of the laws, from the courts to the president of the 
United States, as is undertaken by the same act, concerning aliens, 
is against the article of the constitution, which provides, that " the 
judicial power of the United States, shall be vested in courts, the 
judges of which shall hold their offices during good behaviour," and 
that the said act is void for that reason also ; and it is further to be 
noted, that this transfer of judiciary power is to that magistrate of the 
general government who already possesses all the executive, and a 
qualified negative in all the legislative powers. 

7. Resolved, That the construction applied by the general govern- 
ment, (as is evinced by sundry of their proceedings,) to those parts of 
the constitution of the United States which delegates to congress a 
power to lay and collect taxes, duties, imposts and excises ; to pay 
the debts, and provide for the common defence and general welfare 
of the United States, and to make all laws which shall be necessary 
and proper for carrying into execution the powers vested by the con- 
stitution in the government of the United States, or any department 



07 

thereof, goes to the destruction of all the limits prescribed to their 
power by the constitution : That words meant by that instrument to 
be subsidiary only to the execution of the limited powers, ought not to 
be so construed as themselves to give unlimited powers, nor a part so 
to be taken, as to destroy the whole residue of the instrument : That 
the proceedings of the general government under color of these arti- 
ticles, will be a fit and necessary subject for revisal and correction at 
a time of greater tranquillity, while those specified in the preceding 
resolutions call for immediate redress. 

8. Resolved, That the preceding resolutions be transmitted to the 
senators and representatives in congress from this commonwealth, 
who are hereby enjoined to present the same to their respective 
houses, and to use their best endeavours to procure at the next ses- 
sion of congress, a repeal of the aforesaid unconstitutional and ob- 
noxious acts. 

9. Resolved, lastly, That the governor of this commonwealth be, 
and is hereby authorized and requested to communicate the preceding 
resolutions to the legislatures of the several states, to assure them 
that this commonwealth considers union for specified national pur- 
poses, and particularly for those specified in their late federal com- 
pact, to be friendly to the peace, happiness and prosperity of all the 
states : that faithful to that compact, according to the plain intent 
and meaning in which it was understood and acceded to by the seve- 
ral parties, it is sincerely anxious for its preservation : that it does also 
believe, that to take from the states all the powers of self-government, 
and transfer them to a general and consolidated government, without 
regard to the special obligations and reservations solemnly agreed to 
in that compact, is not for the peace, happiness or prosperity of these 
states : And that therefore, this commonwealth is determined, as it 
doubts not its co-states are, tamely to submit to undelegated and con- 
sequently unlimited powers in no man or body of men on earth : that 
if the acts before specified should stand, these conclusions would flow 
from them ; that the general government may place any act they think 
proper on the list of crimes, and punish it themselves, whether 
enumerated or not enumerated by the constitution as cognizable by 
them ; that they may transfer its cognzance to the president or any 
other person, who may himself be the accuser, counsel, judge and 
jury, whose suspicions may be the evidence, his order the sentence, 
his officer the executioner, and his breast the sole record of the trans- 
action ; that a very numerous and valuable description of the inhabi- 
tants of these states, being by this precedent reduced as outlaws to 
the absolute dominion of one man, and the barrier of the constitution 
thus swept away from us all, no rampart now remains against the pas- 
sions and the power of a majority of congress, to protect from a like 
exportation or other more grievous punishment the minority of the 
same body, the legislatures, judges, governors and counsellors of the 
states, nor their other peaceable inhabitants who may venture to re- 
claim the constitutional rights and liberties of the states and people, 
or who for other causes, good or bad, may be obnoxious to the views, 
or marked by the suspicions of the president, or be thought dangerous 



68 

to his or their elections or other interests public or personal : that the 
friendless alien has indeed been selected as the safest subject of a 
first experiment ; but the citizen will soon follow, or rather has already 
followed ; for, already has a sedition act marked him as its prey : 
that these and successive acts of the same character, unless arrested 
on the threshold, may tend to drive these states into revolution and 
blood, and will furnish new calumnies against republican governments, 
and new pretexts for those who wish it to be believed, that man can- 
not be governed but by a rod of iron : that it would be a dangerous 
delusion, were a confidence in the men of our choice, to silence our 
fears for the safety of our rights : that confidence is every where the 
parent of despotism ; free government is founded in jealousy and not 
in confidence ; it is jealousy and not confidence which prescribes 
limited constitutions to bind down those whom we are obliged to trust 
with power : that our constitution has accordingly fixed the limits to 
which and no further our confidence may go ; and let the honest ad- 
vocate of confidence read the alien and sedition acts, and say if the 
constitution has not been wise in fixing limits to the government it 
created, and whether we should be wise in destroying those limits ? 
Let him say what the government is if it be not a tyranny, which the 
men of our choice have conferred on the president, and the president 
of our choice has assented to and accepted over the friendly strangers, 
to whom the mild spirit of our country and its laws had pledged hos- 
pitality and protection : that the men of our choice have more re- 
spected the bare suspicions of the president, than the solid rights of 
innocence, the claims of justification, the sacred force of truth, and 
the forms and substance of law and justice. In questions of power, 
then, let no more be heard of confidence in man, but bind him down 
from mischief, by the chains of the constitution. That this com- 
monwealth does therefore call on its co-states for an expression of 
their sentiments on the acts concerning aliens, and for the punishment 
of certain crimes herein before specified, plainly declaring whether 
these acts are or are not authorized by the federal compact? And it 
doubts not that their sense will be so announced, as to prove their at- 
tachment unaltered to limited government, whether general or par- 
ticular, and that the rights and liberties of their co-states, will be ex- 
posed to no dangers by remaining embarked on a common bottom 
with their own : That they will concur with this commonwealth in 
considering the said acts as so palpably against the constitution, as to 
amount to an undisguised declaration, that the compact is not meant 
to be the measure of the powers of the general government, but that 
it will proceed in the exercise over these states of all powers whatso- 
ever : That they will view this as seizing the rights of the states, and 
consolidating them in the hands of the general government with a 
power assumed to bind the states, (not merely in cases made federal,) 
but in all cases whatsoever, by laws made, not with their consent, but 
by others against their consent : That this would be to surrender the 
form of government we have chosen, and to live under one deriving 
its powers from its own will, and not from our authority ; and that the 
co-states recurring to their natural right in cases not made federal, will 



69 

concur in declaring these acts void and of no force, and will each 
unite with this commonwealth in requesting their repeal at the next 
session of congress. 

EDMUND BULLOCK, S. H. R. 

JOHN CAMPBELL, S. S. P. T. 

Passed the house of representatives, Nov. 10th, 1798. 
Attest, 

THOMAS TODD, C. H. R. 

In SENATE, November 13th, 1798, unanimously concurred in. 
Attest, 

B. THRUSTON, Clk Sen. 

Approved November 16th, 1798. 

JAMES GARRARD, G. K. 

By the Governor. 

HARRY TOULMIN, 

Secretary of State. 



DEBATES 



IN THE 



HOUSE OF DELEGATES OF VIRGINIA, 



ON THE FOREGOING 



REPORT AND RESOLUTIONS. 



TO THE PUBLIC 



The following debates in the legislature of Virginia, emanated from 
that great struggle which so long agitated the politicians of the United 
States. The two parties were perhaps less divided about our foreign 
relations, than about the internal measures of the administration. 
Among these measures, the alien and sedition laws were the most 
prominent and the most obnoxious. No sooner w 7 ere they passed, 
than the nation was thrown into a flame. They were defended by the 
one party, on account of their alleged expediency. They were at- 
tacked by the republican party, in the strongest manner, as not only 
uncalled for by the circumstances of the country; as not only calcu- 
lated to abridge the hospitalities due to the persecuted foreigner, and 
to trench upon the liberties of our people, and the independence of 
the press; but as sweeping down the barriers which separated the 
powers of the states and of the general government, and violating the 
most sacred principles of the federal constitution. The political views 
of the authors of those laws were keenly attacked, and their tendency 
to enlarge the jurisdiction of the United States, at the expense of the 
rights of the states and of the people, was exposed in the strongest 
colours. Presented in this last point of view, the subject assumed an 
additional importance. The question of expediency was at last al- 
most entirely superseded by the more engrossing question of constitu- 
tionality. The theory of our government was analyzed and unfolded. 
The most fearful consequences were depicted from an humble acqui- 
escence in such portentous encroachments. The spirit of discussion 
was exhibited in every form, which is familiar to the citizens of a re- 
public. 

The press teemed with essays on both sides. The controversy pe- 
netrated almost every social circle. Deliberative bodies became the 
theatres of the most eager and animated disputes. 

Among these bodies, the legislature of Virginia stood conspicuous. 
Devoted to a rigid construction of the federal constitution, and to the 
most powerful defence of the rights of the states, it displayed its prin- 
ciples on this occasion with more than usual ability and zeal. Reso- 
lutions were introduced by Mr. John Taylor of Caroline, which are 
since known to have been penned by Mr. Madison. A long and spi- 
rited debate ensued. Politicians, who had been distinguished on the 
theatre of the union, rallied with all their power, around the standard 
of the republican party. John Taylor of Caroline, William B. Giles, 
and W. C. Nicholas, and others, displayed their wonted powers ; and 
many young orators also came forth, to give an early promise of the 
distinction to which they were destined to attain. The opposition was 
led by George Keith Taylor, one of the most acute debaters, which 
this state has produced ; the father of our penitentiary system ; too 
10 



74 

prematurely cut off in the vigor of his years ! Joined by Lee, and by 
other determined spirits, he made as good a defence as his cause would 
permit. But they failed ; and the republican party triumphed in the 
house, and in a short time in the nation. Thomas Jefferson was soon 
after elected the president of the United States ; and the constitution 
was at that time preserved from the encroachments which threatened 
to violate its fundamental principles. 

To keep alive the memory of the doctrines which actuated the re- 
publicans of those days, as well as to extend the reputation of the able 
speakers who appeared on that occasion, the present edition of the de- 
bates has been committed to press. They were taken down by Mr. 
Hansford, and the accuracy of the report was worthy of the fidelity 
of the reporter. 

The present edition is struck by the same press which has already 
furnished an edition of Mr. Madison's celebrated report. The two 
pamphlets ought, indeed, to go together. They are acts of the same 
important drama. For, scarcely had the resolutions in 1798-9 been 
adopted, when both parties in Virginia exerted themselves to return 
to the next legislature some of their ablest leaders. Patrick Henri/ 
was elected by the federal party, and James Madison by the republi- 
cans. But these two illustrious champions were not permitted again 
to meet together. Mr. Henry died before the meeting of the legisla- 
ture ! — Mr. Madison distinguished himself by that memorable report 
which familiarly bears his name, and which ought to last as long as 
the constitution itself. The debates of that session were not pre- 
served — but those of the preceding one, which adopted the resolutions 
on which the report was predicated, form an admirable introduction 
to that memorable paper. They ought both to be preserved for the 
honour of Virginia, and for the safety of the constitution. 

Richmond, August 1S29. 






DEBATE, 



IN THE HOUSE OF DELEGATES, 

Thursday, December 13, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. BracJcenridge in the chair, when 
the resolutions presented to the house by Mr. John Taylor , and refer- 
red to the committee, being taken up for its consideration, 

Mr. JOHN TAYLOR began, by expressing great regret at the oc- 
casion which brought him forward. He conceived it to be an awful 
one. That liberty was in danger, and as that rested on the founda- 
tion of responsibility, every effort should be made to repel attempts to 
subvert it. He could assure them, that his feeble efforts should be 
used for that purpose. He said that two subjects were contemplated 
by the resolutions before them, to which he should chiefly confine his 
observations. He should consider the constitutionality of the laws re- 
ferred to in the resolutions, and their correspondence with human 
rights, natural and civil. He compared the executive of Great Bri- 
tain with the congress of the United States. The prerogatives of the 
first were limited and defined by the constitution of England, as were 
the powers of the latter by the constitution of the United States ; and 
if the king at any time overleaped his boundaries, it was always cer- 
tainly opposed, and met with correction. He stated the case of ship 
money imposed by Charles I. What was the consequence of that 
measure? It was opposed. He applied that case to the congress of 
the United States. The powers of congress, by the constitution, were 
defined, as clearly as were those prerogatives. That, in Great Bri- 
tain, where the prerogatives were limited, wherever the executive over- 
leaped their bounds, other organized bodies would always control and 
check it. So, if congress overleaped their bounds, some organized 
body should certainly oppose it. Concluding the general government 
to be limited in its powers, he proceeded to enquire if congress, in 
passing the alien and sedition laws, had overleaped its bounds. He 
mentioned a law, which congress had passed at the same session, re- 
specting alien enemies, as it had been suggested that the one particu- 
larly called the alien law, was justifiable on account of danger to be 
apprehended from foreigners. This alien enemy law passed by con- 
gress, as well as a law of Virginia, upon that subject, were made in 
favor of aliens. They were necessary, and found to be the usage of 
all nations. A contrary usage would be cruel and inhuman. Such 
laws as these were attended with mutual advantages to the nations at 
war. They constituted a mutual assurance that the persons and pro- 
perty of its own citizens, would be safe in the country of the other. 
This was not the object of the law in contemplation. The other laws 



76 

were sufficient for every purpose. That aliens, when arrested and 
made prisoners, were not dangerous. He said he would ask the ques- 
tion, whether alien friends possessed any rights. If so, they might 
be secured by the constitution. Then, if they were infringed, the 

- constitution was broken. If congress could infringe the rights of 
those people, they might infringe the rights of others. One usurpa- 
tion begat another. We ourselves might as well be the victims as 
others. He said, that alien friends, by the common law, had the rights 
of life, liberty and property; and that these common law rights were 
secured by the constitution ; to prove which, he quoted that clause of 
the constitution by which those rights are secured, which constitution 
literally reached aliens, by using in all places the term " persons," not 
" natives." He then put the case of our population being increased 
by a considerable emigration of foreigners to this country, who might 
be disposed to retain their foreign citizenship : we should then have 
amongst us a body of men, of whom the president would be despot: 
they would be entirely in his power. He further observed that, sup- 
pose government (never an enemy to power,) should strengthen its 
hands by corruption, by patronage, by standing armies, by a system 
of fears, (he would not say that our government had done so, but in 
case a government should do so,) that in such case, this body of emi- 
grants, thus dependent upon government, would be a proper instru- 
ment in the hands of the executive, to effect its purposes : that execu- 
tive power was the greatest enemy which republican principles had. 
He asked, if any one would then assert that to strengthen executive 
power in this way, wholly unforeseen by those who formed the con- 
stitution, so as to extend beyond their intention, could be agreeable to 
the constitution : that republican principles were the great end of the 
constitution. Then, if he had proved this law inimical to those prin- 
ciples, he said that he had attained the great end at which he aimed. 
He next observed, that the constitution cautiously attempted to dis- 
tribute its powers. It was nothing more than a deed of trust made 
by the people to the government. The government, then, had no 
right to outstrip its powers. Were they not defined ? Had the con- 
stitution given any power to deprive any person of trial by jury? That 
if once we were to permit executive power to overleap its limits, where 
was it to stop? And, if the executive branch exercised powers not 
bestowed, it overleaped the constitution. He asked if we had arrived 
to that situation, that the powers which the people possessed were to 
be surrendered. Were we approaching the system of Divine right. 

r He proceeded to construe the alien law, and said that the precedent 
established by it was dangerous, both as it affected individuals, and as 
it affected states. That a power inclined to usurpation, to the injury 
of aliens, would be inclined to usurp, in the construction of the con- 
stitution, to the injury of states; and that the precedent in the one 
case, would soon ripen into a law, for justifying the other. 

He next read the sedition law, and proceeded to comment upon the 
words of it, especially the words counsel or advise. He asked how 
he could counsel or advise another, without speaking to him ; conse- 
quently these words extended to words spoken. He put the case of 
his counselling his ueighbour to withstand the two laws of congress 



77 

before mentioned. That, by the construction of the last mentioned 
law, words were reached, and duties prevented : so that, if he should 
advise his neighbour in regard to those laws, the latter one enacted a 
punishment. He then asked, what was the case of a representative 
in state legislatures. He had taken an oath to oppose unconstitutional 
laws. What was he to do 1 On one hand was perjury, on the other a 
prison. Suppose a law were to infringe the guarantee made by the 
constitution, of a republican form of government. What was a repre- 
sentative to do 1 Was he not to withstand it ? If such law should 
tend to destroy that guarantee, were we to wait until the enemy's de- 
tachments closed us in on every side 1 This sedition law said yes. 
In the construction of this law we were placed in the hands of law- 
yers. The judge would construe the law. There were two kinds of 
construction, a strict construction, and a liberal construction. The 
judge might put upon it a liberal construction. He stated an histori- 
cal fact. That sedition was forbidden by the common law. That the 
law of England respecting treason, went no farther in describing that 
offence, than our law does in describing sedition. He then cited the 
case of Algernon Sidney. That Algernon Sidney wrote a book in 
answer to Filmer, to prove " that the authority of kings was not of 
divine original, (a thing in those days deemed necessary to be proved.) 
He wished a necessity might never appear for a new edition of this 
book. For this he was prosecuted and tried, condemned and executed. 
And this was a liberal construction of the law. He thought that this 
case might well be applied in an argument on the subject of this law 
of ours. However, the law was said to be harmless. That to bring 
themselves within it, men must unlawfully combine, they must con- 
spire, they must lie, for that they might still tell truth without danger. 
But this could never satisfy him that it was not dangerous, when he 
recollected that the best patriots had been sacrificed by sedition laws, 
with the help of construction. He then said that another distinction 
had been set up, that this law was not to restrain the freedom, but the 
licentiousness of speech. This, he observed, was an epithet which 
might be applied to any attempt to restrain usurpation. Men find no 
difficulty in pronouncing opinions to be both false and licentious, 
which differ from their own. That this same distinction (if it was 
just) would empower congress to regulate religion, the freedom of 
which is secured by the same article which secures the freedom of 
speech. They might in the end be induced to regulate the mode of 
petitioning, that it might be performed orderly, and not licentiously, as 
it is in some countries, by crawling on the belly towards a throne, and 
licking the dust. He then observed, that a power to restrain treason, 
was more necessary in a government, than to regulate sedition : that 
our constitution had yet limited the power over treason to a few cases, 
which he stated. However, congress might still regulate the punish- 
ment in case of treason ; and it was possible, that they might establish 
in such case a punishment short of death ; a punishment even infe- 
rior to that for sedition. What then would result 1 Treason was the 
genus; sedition a species. If the first were limited, and the second 
not, what security had we? He then read the third article of the 
amendments to the constitution, concerning freedom of speech, &c. 



78 

and asked in what sense this clause was understood at the time of 
adoption? Could it then have been contemplated by any one, that 
such a law as this would ever have been passed ? The adoption of 
the constitution by this state was accompanied by a condition contain- 
ing a reservation of these very rights : So that they must have been 
understood in a very different sense then, than when these laws of 
congress passed. He read the ratification of the constitution by the 
convention of this state, and said that the same ought to be looked 
upon as a cotemporaneous exposition of the part of the constitution 
referred to. He then asked, if the sedition law did in no respect can- 
cel, restrain or infringe the liberty of the press! And concluded his 
observations upon the first of the two subjects, to which he had before 
mentioned he should confine them, by saying that, if he had proved 
the laws spoken of to be unconstitutional, the objection to them on 
that ground was strong ; and by asking further, could they then be 
justified upon the ground of necessity, or that they were harmless? 

He began his observations upon the second subject, by asking if 
those laws were correspondent with human rights? Those rights, he 
said, were, freedom of speech, freedom of person, a right to justice, 
and to a fair trial. If an alien possessed those rights, he asked, could 
he avail himself of them under the present law? Could a citizen, 
under the sedition law, exercise the freedom of speech, or of religion, 
which last, a few days before, he had heard called a social right ? It 
was not so. It was either a natural duty, or a natural right. Was it 
possible that at this day, religious worship could be restrained by law? 
The right of opinion, he said, should be held sacred. It ought never 
to be given up in any one instance. Religion was only a branch of 
opinion. With what propriety could that range of thought, bestowed 
by the Creator upon the human mind, be controlled by law. He 
deemed it a sacrilege for government to undertake to regulate the 
mind of man. It was a subject by no means within its powers. What 
would be the consequence of such a measure ? Universal ignorance 
amongst the people. He then asked, if ignorance was a desirable 
thing? And were the free exercise of the faculties of the human 
mind, to be once restrained and shut up, he would ask them, then, 
what was man ! He was therefore opposed to those laws, as being 
destructive of the most essential human rights. He again asked, if 
such laws were ever contemplated at the time of the adoption of the 
constitution, and what would be the consequence of the destruction 
of those essential human rights, of which he had spoken? What 
would be the probable effects of those laws? They would establish 
executive influence, and executive influence would produce a revolu- 
tion. There was great danger in throwing too great weight in any 
one scale. He then proceeded to enquire whether those laws would 
increase executive influence, and concluded that they would. That 
they would by begetting fear. If public opinion were to be directed 
by government, by means of fines, penalties and punishments, on the 
one hand, and patronage on the other, public opinion itself would be 
made the stepping stone for usurpation. If congress should under- 
take to regulate public opinion, they would be sure to regulate it so 
as to detach the people from the state governments, and attach them 



to the general government. But, he said, the most dangerous effect 
of those laws would be, the abolition of the right to examine public 
servants. He again referred to Sidney's case, and recited the doc-^ 
trine of Filmer, to illustrate this subject. To bring about such a mea- 
sure as this, he said, it would be necessary for congress, in the first 
place, to establish the point, that they were the masters, and not the 
servants, of the people. He said, government might do wrong. Could 
a criminal be ever brought to justice, who had a power to regulate the 
mode of his own examination ? And is it not criminal in a govern- 
ment to oppress a people 1 If its acts were wrong, they would produce 
discontent : discontent was the only road to redress. But redress could 
never be obtained, because the sedition law prohibited the only mode 
of obtaining it, by punishing that very matter of exciting discontent. 
He asked what was despotism ? He defined it to be, a concentration 
of powers in one man, or in a body of men. The manner of concen- 
trating them was unimportant : the end was the same. Individuals 
and states were equally affected by such concentration of power. The 
concentration of it in an individual, would enslave other individuals; 
a concentration of it in congress, would operate to the destruction of 
the state governments; and that, if the balance of power which the 
state governments ought to hold against congress, were once lost, we 
must be precipitated into a revolution. He adverted to the vast power 
concentrated in the senate of the United States. This had been se- 
riously viewed at the time of the adoption of the constitution, and 
since. That, at the time of framing the constitution, mutual conces- 
sions were made between the states, which he believed to be the sole 
reason for admitting the small states to an equal share of power in that 
body, with the large, the real counterbalance of which concession, was 
the existence of state governments. Thence he concluded, that be- 
ing thus situated, if the balance which the states ought to hold, should 
happen to be lost, the small senate of the United States, might govern 
America. He further said, that although he had read in pamphlets 
and newspapers, and also had heard it reported, that such principles as 
he held, led to commotion, still he would assert that it was more likely 
to happen that a majority of small states might adopt measures which 
would oppress the rest, although they should contain the greatest num- 
ber of citizens : and that the result of this would be a civil war. The 
many would not submit to the few, and all history would show, that a 
majority armed with power, would never yield it without a struggle. 
He said that oppression was the road to civil war. To prove which, 
he asked what produced the war between Britain and America 1 Op- 
pression. What produced the revolution of France? Oppression. 
What produced the revolt of the United Provinces from Spain? Op- 
pression. He said, the way to keep a nation quiet, was to make it 
happy : that oppression goaded it on to civil war. In justification of 
which opinion, he stated that the people of the United States were at 
this time under the pressure of certain grievances. The way then to 
stop civil war, would be to stop oppression. But, said gentlemen, we 
must not disunite. To this he would answer, remove oppression, and 
union would take place. He had observed it asserted in a pamphlet 
circulated at this place, that these late measures of the government 



80 

might be justified on the ground of self-defence. Under such a pre- 
tence as that, he said congress might pass any law whatever. This 
never could have been the object of the constitution. He said that 
the old instrument of confederation contained the same language, but 
no such power as that contended for was ever claimed. Had it ever 
possessed it, its want of energy would not have suggested the present 
constitution. (He then read the preamble of the articles of confede- 
ration, reciting that the same was entered into for the public good, 
&c.) By adopting a different construction from that made by him- 
self, he said the propriety of no law which congress should ever pass 
could be denied. He then concluded by saying that our rights were 
the offspring of pangs and peril. Let them never then be wrested 
from us. It was the custom in some countries, for the prince to send 
for the first born child of every subject, to have him trained as a sol- 
dier for his army. In that ease, could the distressed parent be as- 
sured that by surrendering his first born, he would secure the rest ? 
The first torn of American rights, was the free examination of pub- 
lic servants. Were we to surrender that, could we be certain that the 
rest would be secured ? That these rights were the fruit of victory, 
and recompense of blood. We had defended them against the arms 
of Britain. Never then let us surrender them to the arts of sophistry 
and ambition. 

Mr. George K. Taylor moved that the committee might rise, in 
order to give time to himself and the other members to consider well 
the subject before them. He said, it was an important one, as the 
object of enquiry seemed to be, to impeach with unconstitutionality, 
two laws passed by both houses of congress, and by them declared to 
be constitutional. 

Mr. Foushee made a few remarks in opposition to thbse of Mr. 
Geo. K. Taylor, in regard to the probable constitutionality of the 
laws, by reason of their having passed both houses of congress. 

Mr. Nicholas hoped that the gentleman from Prince George did not 
intend by moving to rise, to preclude from speaking any person then 
disposed to speak. 

Mr. Geo. K. Taylor said that he did not. But (after waiting some 
time and no member rising to speak,) he renewed his motion for the 
committee's rising. 

The committee rose accordingly, reported progress, and had leave 
to sit again. 



IN THE HOUSE OF DELEGATES, 

Friday, December 14, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Brackenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, Mr. 



81 

Magill said, if he were in order, he would move that the resolutions 
should be read. 

The chairman declared the same to be in order, and the resolutions 
were read accordingly by the clerk. Whereupon, 

Mr. GEORGE K. TAYLOR arose, and said that he never felt him- 
self impressed with more awe than on that occasion. The subject was 
of itself sufficiently momentous ; but the resolutions before them ren- 
dered it still more so. They contained a declaration, not of opinion, 
but of fact. They declared the acts of congress, called the alien and 
sedition laws, to be unconstitutional, and not law. These laws, he- 
said, had been passed by both houses of congress. One of those 
houses was formed of the immediate representatives of the whole 
American people, the other of members chosen by the state legisla- 
tures. These two houses thus formed, and thus representing the 
whole people, and the respective state sovereignties, had passed those 
laws after solemn deliberation and discussion, and declared them to 
be constitutional. In such case, he conceived, the legislature of Vir- 
ginia, the representative of a part only of the American people, ought 
to deliberate seriously before they undertook to give an opinion upon 
them ; and if their opinion should be such as the resolutions stated, 
they should still endeavour to couch that opinion in different language ; 
for, by those resolutions, as they then stood, the people were encou- 
raged most openly to make resistance. He compared the two legisla- 
tive bodies, congress and the assembly of Virginia, together. He 
presumed the former to be as wise, as watchful of the public interests, 
as the latter. He then called the attention of the committee to what 
had been the determination of the legislatures of the other states. All 
which had taken these laws under their consideration, had given them 
their decided approbation, either by way of resolution, or address to 
the president. It could not be denied but that they had some wis- 
dom, and that it was not exclusively confined to the legislature of Vir- 
ginia. As the legislatures then, of so many states, had concurred in 
the approbation of them, he thought it necessary for the legislature of 
this state to hesitate in expressing its opinion of their unconstitution- 
ality, especially when they reflected on the consequence attending it. 
For if these laws were unconstitutional, the resolutions made it the 
duty of the people to defend themselves against them. He said he 
would then proceed to shew to the committee that those laws were 
not unconstitutional. In that attempt he was not certain whether or 
not he should succeed. He possibly might bring them to doubt, and 
should he do that he should feel in some measure satisfied. On the 
other hand, they might be assured that the consequences of pursuing 
the advice of the resolutions, would be insurrection, confusion and 
anarchy. The business upon which they were acting, he said, was 
of an extensive nature. The gentleman from Caroline had spoken 
upon both laws. He should confine himself to the alien law only. 
He conceived that would be as much as he could perform. For in 
doing that, he should fatigue himself, and he expected the committee 
also. 

11 



82 

He proceeded then to examine the situation of aliens coming into 
this country. He said, they had no more rights here, than they had 
elsewhere. He asked upon what footing aliens came into any coun- 
try? By right, or by permission? Still it was said, that their rights 
were to be affected by this law of congress. He then cited and read 
Vattel, page 157, section 94, to show that a nation may prohibit fo- 
reigners from entering its territory ; and from that authority concluded, 
that their admission into a country was by no means a matter of right, 
but of favor. He said, the alien did not come within the scope of the 
general laws of the country into which he came. During his stay 
therein, he was to be protected indeed by those laws; but was not the 
object of them. He cited and read Vattel again, page 100, section 
231, and Blackstone's Commentaries, vol. 1, page '259, to show that 
by the law of nations, it is left in the power of all states to take such 
measures about the admission of strangers as they think convenient : 
that so long as their nation continued at peace with that in which 
they resided, and they behaved themselves peaceably, they were under 
the protection of the government of that nation, though liable to be 
sent or ordered away, whenever that government saw occasion, or its 
safety required it. If there were nothing then, he said, in the consti- 
tution of the United States, respecting the migration of persons, the 
doctrine of the law of nations which he had read, was sound, and the 
general government might by that lawfully restrain or regulate the 
entry of aliens, and order them away if necessary. But the constitu- 
tion had a clause in it upon that subject, being the first clause of the 
ninth section of the first article, which he read, in these words: 
" The migration or importation of such persons as any of the states 
now existing shall think proper to admit, shall not be prohibited by 
the congress prior to the year 1808; but a tax or duty may be im- 
posed on such importation, not exceeding ten dollars for each person." 
This clause then, he said, contained a recognition of the right of con- 
gress to prohibit migration or importation after the year 1808. In his 
opinion too, the prohibition of the right of congress by that clause, 
extended only to such states as were existing at the time of framing 
the constitution ; which showed that congress of course might regu- 
late the migration of persons to such states as were established after 
that time; and that was exemplified by the prohibition by congress of 
the admission of slaves into the new states. The clause read then 
took away from congress the right of prohibiting migration within a 
limited time. But though the entry was prevented, the question then 
recurred, was their removal when dangerous prevented also? The 
question was of great importance. When these states, he said, 
declared themselves independent, they entered into articles of con- 
federation. That was a system composed of one body : there 
was no executive, no judiciary. By that system, that single body 
could enact nothing binding on the people. It was consequently de- 
pendent on the several states for the execution of all its measures. 
The old congress wished to establish a duty of five per centum only 
on goods imported, but it could not be carried into effect by reason of 
the opposition of the states. To obviate that mischief the federal 
convention was appointed, which assembled and framed the present 



83 

constitution. That took from the several states all matters of a gene- 
ral nature; all matters relating to foreign nations. It established le- 
gislative, executive and judiciary branches, which acted upon the 
several matters coming within their respective spheres ; and it cer- 
tainly intended that all matters of general national concern should be 
confided exclusively to the general government. There was a gene- 
ral consent of the people that such matters should be vested in the 
general government, and taken from the states. He then read the 
list of powers vested by the constitution in the general government. 
By the general law of nations, he said, the admission of aliens into a 
country was altogether a matter of grace. They might therefore be 
removed by the government of the country, whenever it was deemed 
necessary. If the general government, then, possessed not the power 
of removal, one great mischief of a general nature, which it was in- 
tended to remedy, would remain as before. The union would be de- 
pendent upon sixteen sovereign and jealous states, for carrying into 
effect such a measure. Some of these states, too, might be on the 
verge of insurrection. An alien banished from one might be ad- 
mitted into another, which would protect him, and thereby the gene- 
ral welfare in that instance defeated, and congress laid at the mercy 
of the particular states. He asked what was the situation of America 
and France at that time? It was true there waa no declaration of 
war between them, but they were not at peace. He enumerated 
their various acts of hostility towards us, and then asked if there was 
no danger to be apprehended from aliens of that country. He him- 
self thought there was. He related also the numerous designs and 
machinations which they had been contriving against us. He deemed 
it therefore highly necessary that the general government, established 
for general benefit and common protection, should possess the power 
of removing them. But, if the law of congress were to be construed 
unconstitutional, the general government could not remove them. 
He read the observations of Mr. Jefferson respecting the necessity of 
a government having the powers of defence and protection ; also Mr. 
Madison's speech in the convention of Virginia to the same effect ; 
and applied them to the case in question. It was true, he said, that 
the constitution prohibited the general government from preventing 
the migration of foreigners prior to the year 1808 : but at the same 
time, the principles of protection must induce a belief that the consti- 
tution did not intend or enact, that when here, they should not be re- 
moved, however dangerous to the general weal. Still, however, it 
was objected, that by the twelth amendment to the constitution it was 
declared, that the powers not granted to congress, were retained by 
the people, or the states respectively. It was clear, he said, that even 
without that amendment, no power could have been exercised by 
congress, which was not expressly given to it, or did not follow by ne- 
cessary implication. The case, he said, was still the same. In re- 
gard to an express grant, there could be no dispute ; and the doctrine 
of necessary implication was proved by the constitution, when in the 
last clause of the 8th section, it grants to congress the power " to 
make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by that 



84 

constitution in the government of the United States, or in any depart- 
ment or officer thereof." From that clause, then, he said, the power 
of congress to pass the law in question, was clearly sanctioned by ne- 
cessary implication. All cases arising under the constitution could 
not be foreseen and enumerated : therefore, that clause was inserted 
for the purpose of enabling congress to carry into effect the powers 
expressly given it by the constitution. Whatever then necessarily 
flowed from those express powers, were within the scope of congress. 
He then asked if there were any thing in the constitution, from which 
the law in question could necessarily and properly proceed? To dis- 
cover that, he first proceeded to examine the preamble. That, he 
said, declared the constitution to be formed in order to form a more 
perfect union, establish justice, insure domestic tranquillity , provide 
for the common defence, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity. The passage of 
an alien law then, he said, was justifiable for the purpose of answer- 
ing the four great ends last mentioned in the preamble, which showed 
the object and intention of the constitution. But he said, there was 
something in it more positive. He called their attention to that clause 
in the enumeration of the powers of congress " to define and punish 
piracies and felonies committed on the high seas, and against the law 
of nations;" and said, that aliens came within it, since for an alien 
to conspire against the peace of the nation, which permitted him a 
residence therein, was an offence against the law of nations. He 
further read the clause declaring that the United States would guar- 
antee to the several states a republican form of government, and pro- 
tect each of them against invasion. He relied much upon the term 
protect used in that clause. Protection, he said, was a preventing, a 
guarding against. He would compare it to a shield, which an indivi- 
dual cast before him to protect himself against the javelin before it 
reached him ; for it would be no protection, if he waited till the 
wound was inflicted. He observed, that whatever flowed from a grant, 
followed the grant itself. Congress, therefore, in protecting the states, 
might enact cautionary laws for the purpose. A law sending away 
dangerous aliens was a cautionary law, tending to protect the states. 
Every society had as much right to prevent the mischief which aliens 
might do, as to punish them for it after it was done. Aliens might 
be punished for crimes as well as citizens. So, laws might be passed 
for preventing the commission of crimes by them, as well as for pre- 
- venting the commission of them by citizens. But such a law must 
always be temporary. It could not be permanent. It would continue 
only so long as danger existed. It would affect only dangerous per- 
sons. Aliens could only be dangerous in time of war, or in times 
verging towards war. In times of safety, such a law would be unne- 
cessary and improper. He agreed, therefore, that a permanent law 
of that kind including all aliens passed before 1808, would be uncon- 
stitutional ; since it might absolutely defeat the 9th section. But that 
a temporary law passed only for the purpose of ordering away dangerous 
aliens, was a law of protection to the states. It was a necessary 
power for every government to possess. A government would be 
worth nothing without it, since it could not protect the people. He 






85 

then proceeded to take the constitution altogether, recapitulated the 
several clauses before cited, and said it was a rule of construction of 
all instruments, that all the parts should be taken and considered 
together, that they might stand together, and be reconciled with one 
another if possible. He called their attention to two clauses of the 
constitution, the ninth section of the first article reserving to the 
states the right of permitting migration, &,c. and the fourth section of 
the fourth article, which declares that the United States shall protect 
each state against invasion. When one part, then, of the constitution,-, 
he said, reserved to the states the right of permitting migration, and 
another granted to congress the power and duty of passing all such 
laws as would protect the states from invasion or violence, would not 
the same operate as a proviso qualifying the former general expression, 
and allow congress from principles of protection, to expel dangerous 
aliens ? He thought at any rate the power in that case contended for 
a necessary one, even were it not in the constitution. And in such 
a case, the legislature ought to recommend an amendment to the con- 
stitution for the purpose. Since the adoption of the constitution, he 
said, congress had passed laws for erecting forts in different parts of 
the United States. He asked what part of the constitution gave them 
that power ? They must derive it from the fourth section of the 
fourth article only, the same being for the purpose of protection. 
There was a necessity for exercising this power at that time. We 
had amongst us a number of dangerous Frenchmen. The chief 
author however of the plots had sneaked off, as well as his associates. 
He said he was happy to be clear of them. Since they were gone, 
that law was no longer necessary : Congress might then properly re- 
peal it. Yes, he said, the incendiaries were gone. He congratulated 
America upon it. He hoped they never might return. But an objec-- 
tion had been made that the alien law had taken away from the poor 
alien the trial by jury. He said that aliens were not a party to the 
compact, but citizens only. The constitution secured rights to citi- 
zens, and declared that they should not be deprived of them, but by 
trial by jury. But, aliens not being a party to the compact, were not 
bound by it to the performance of any particular duty, nor did it con- 
fer upon them any rights. He referred to Vattel again, to show that 
by the law of nations, the admission of aliens into a country was not 
a matter of right, but of favor ; and observed that ordering away an 
alien, was not divesting him of any right, but withdrawing from him 
a favor ; and that it was new doctrine that a favor could not be with- 
drawn, but by trial by jury. He then observed that the alien law did 
not touch life, liberty or property ; but only directed the alien to be 
removed. If he would not remove himself, however, when ordered 
away, but remained obstinate, he might then be imprisoned. He 
read, and relied upon the favorableness of that clause of the law 
which extended to the suspected alien the right of proving to the - 
president that he was harmless. He still asserted that the law of 
nations gave a power to the government to remove aliens when 
dangerous ; and that, by the law in question, neither life, liberty 
or property was touched, except in cases of contumely. He then 
stated the case authorized by our municipal laws, respecting surety 



86 

of the peace; and asked, how did the trial by jury stand in that 
case ? The citizen, he said, was deprived of it, and that too in a free 
country. The case of the alien then, was not harder. The trial by 
jury was dispensed with in the case of the peace breaker ; therefore, 
the same might be done in the case of an alien. He said, that the 
terms upon which aliens were admitted, were, their not intermeddling 
with the concerns of the nation. Should they do so, and, upon being 
required to withdraw, continued obstinate, they must be committed in 
the same manner as citizens who refused to give surety of the peace. 
Another objection had been made, that if they were sent out without 
trial by jury, they might next be deprived of life and property without 
it. This, he said, could not be done. An alien was entitled to them 
as natural rights; and therefore, as they were rights, could not be 
deprived of them, without a trial by jury. The case was quite dif- 
ferent in regard to his removal, as his admission into the country was 
not matter of right, but was merely a matter of favor. It had been 
also objected, that the three powers of government were all blended 
in the president by the alien law. He said that they were not. But, 
if such a power in regard to aliens were necessary, it must be en- 
trusted somewhere. It could not be with a private individual. It 
could not be with the judiciary. It could not be with the legislature : 
but might most properly be with the executive. He, by the consti- 
tution, was bound to execute the laws : therefore, it was most properly 
entrusted with him, being the executive officer, with whom all persons 
and bodies whatever, were accustomed to communicate. It could 
least of all be entrusted with a court, which transacted its business 
publicly. For these matters must be in confidence. That was often 
necessary for nipping things in the bud. Secrecy then being abso- 
lutely necessary, and a court of law being publicly held, and at stated 
periods, the proceedings might be divulged, or the explosion take 
place, before they could obtain information, or try the fact. And all 
that too, not for the sake of a matter of right, but mere courtesy. It 
could not be entrusted to the legislature, unless its sittings were per- 
manent: it could then only be entrusted with the president. To 
prove the justice and fairness of this regulation, he again introduced 
the case of a man brought before a magistrate to give surety of the 
peace. On the complaint of A. he said, the magistrate might arrest 
and imprison B. until he gave security to be of good behaviour. In 
that case, a man was deprived of liberty without a trial by jury ; but 
that was right, because society was bound to protect as well as vindi- 
cate its citizens ; and before a trial of the fact could be had, the person 
apprehending danger might be murdered. He again cited Mr. Jeffer- 
son's piece, to prove, that no cases under the law of nations, were 
ever submitted to a jury to be tried. He cited also part of a speech 
of Mr. Madison, in the convention of Virginia, nearly to the same 
effect; and thereupon observed, that the trial by jury was only used 
in municipal regulations, where citizens and others were concerned 
under the particular laws of the state, and not in cases between the 
government and aliens, which arise under the law of nations. That 
even in matters of right, the right of the individual ought to yield to 
the good of the community. He then read that clause in the consti- 



87 

tution concerning the suspension of the writ of habeas corpus, and 
said, that the suspension of that writ might take place during the 
existence of rebellion or invasion. In that case, a citizen might, at 
the will of the president, be committed and confined until the existing 
danger was over. And if a citizen, invested with all civil rights, 
might thus be confined in a time of danger, so ought an alien, who 
had no positive political right whatever, when the good of the com- 
munity required it. He said, he might produce many other instances, 
to prove the propriety of necessary implication. He then mentioned 
the subject of foreign intercourse, and asked, whence was that power 
derived ? He knew no part of the constitution which particularly 
authorized it. It could be derived only from that clause of the con- 
stitution, which prohibited to the states the power of making any 
treaties, or entering into any agreements. It had been observed by 
the gentleman from Caroline, that congress had passed a law to send 
away alien enemies, and that was a good law. Where was that power 
to be found ? No where, except it were derived from that protective 
power, which was to be gathered from the constitution by means of 
implication only, or by implication from the power given to declare 
war. He further asked, at what time those laws were passed, and 
what was the cause? And then observed, that whatever construction 
led to an absurdity, was erroneous. He then supposed the case of 
the states having the power of admitting aliens, and the general go- 
vernment not having the power of removing them. The assembly of 
Virginia might think a whole army of aliens admissible. Suppose, 
he said, that Buonaparte and his army (if they could ever get out 
from the Nile again) were to arrive within the state, and they should 
think them too admissible ; by the construction of the resolutions be- 
fore them, congress in such case ought not to remove them. The 
right of protection, he said, was a natural right, appertaining to each 
individual, and that a number of individuals had as much right to 
protect themselves as one individual. Did the constitution prohibit 
such a right? He then observed, that both the constitution of the 
United States, and of this state, directed that the trial by jury should 
be held, sacred. He said, he would then proceed to examine if that 
right had never been pretermitted by any law of the state ; and re- 
quested that the law of Virginia, for removal of aliens, passed in 1792, 
should be first read. (It was read accordingly by the clerk.) He 
then observed, that although the constitution of the state directed that 
the trial by jury should be held sacred, yet that law, " authorized the 
governor to apprehend, and secure, and compel to depart out of the 
commonwealth, all suspicious persons, &c. from whom the president 
of the United States should apprehend hostile designs against the said 
states." In that instance then, a previous legislature had acknow- 
ledged as a matter indisputable, what this legislature disputed, that a 
suspicious alien might be sent away at the instance of the president. 
Their law even authorized the sending away the alien without a trial, 
and in the mean time his being imprisoned. Yet that legislature, in 
passing that law, did not suppose it had violated the constitution. He 
then read the act of congress under consideration. He compared 
both acts together, and said that he looked upon them to be nearly 



88 

the same. If there were any difference between them, he said it was, 
that the law of the state was more severe than the law of congress, 
inasmuch as the former subjected the alien to imprisonment at all 
events : the latter only in case of his refusal to remove himself. It 
was remarkable too, he said, that the same law of the state, although 
passed in 1792, was re-enacted from one passed in 1785, thirteen 
years ago, and so many years nearer than the present time to the 
revolution, when it is to be supposed the principles of that revolution 
were much purer than they were at the present time. He then con- 
tended that there was the same reservation to the people of all powers 
not granted to the state government, as was to the states of all powers 
not granted to the general government. Consequently the trial by 
jury being declared sacred by the bill of rights, the legislature of the 
state could have no more power by the constitution to pass such a law, 
than congress had by the constitution of the United States. Yet no 
complaint against such a law had ever been heard until the law of 
congress was passed. All the clamour had been reserved for that 
alone. He again observed, that no other state legislature had passed 
any such resolution as the one before them. They must be presumed 
to be equally watchful : they must be presumed to have wisdom too, 
and that it was not exclusively confined to this legislature. They 
should hesitate, therefore, in making such a declaration as was then 
contemplated. He then called for the reading of the law of the state 
which authorized the delivering up a citizen committing a crime in a 
foreign country, at the instance he said of the United States, without 
trial by jury, on mere suspicion and on demand. (The clerk read 
the law.) Mr. Taylor then called the attention of the committee to 
the last clause of the law, from which it appeared that the offender 
might be tried by a jury for the offence in this state, but was deprived 
of such a trial by the fourth section, where he was delivered up to a 
foreign nation on requisition. He ascribed the reason for dispensing 
with the trial by jury, in the latter case, to be, because it was a case 
within the law of nations, which admits no trial by jury, and still that 
law was thought not incompatible with the constitution. He observed 
that the gentleman from Caroline had dilated much upon the probable 
effects of the law of congress in question. He would indulge himself 
in the same manner. 

What, said he, would be the situation of this country, were it once 
known that congress had no such power as that of removing aliens? 
He begged them to recollect what horrid scenes of devastation and 
carnage had been exhibited by Frenchmen in their own island of 
Saint Domingo. If France would abandon her people there, and de- 
solate the fairest colony in the world, could it be supposed, that they 
would love us more than themselves : that they would spare their foes. 
He begged them to recollect too, the doubtful state of affairs between 
our country and France. It was true that the two nations were not 
at war, since no declaration of war had been on either side, but they 
were not at peace, since each party was seizing the vessels of the 
other. War then might ensue, and at the time the alien law was 
passed, it was a thing extremely probable. Every nation, before it 
struck, prepared as deadly a blow as possible. He then asked if the 



89 

French could wound us in any respect so vitally, as by arming the 
slave against his master. Attempts, he said, had been already made, 
by French emigrants, to excite our slaves to insurrection. Suppose 
then, they were to attempt the thing again, and an insurrection should 
accordingly take place, what would be the consequence 1 In that com- 
mon calamity, he said, the ranks of society would be confounded : the 
ties of nature would be cut asunder : the inexorable and blood-thirsty 
negro would be careless of the father's groans, the tears of the mo- 
ther, and the lamentations of the children. The loudest in their wail- 
ings would be their wives and daughters torn from their arms, with 
naked bosoms, outstretched hands, and dishevelled hair, to gratify the 
brutal passion of a ruthless negro, who would the next moment mur- 
der the object of his lust. He then asked how all that was to be pre- 
vented 1 By vesting the general government with that power to re- 
move such aliens, which it had already so generously exercised for the 
purpose, in the law then under consideration : a law particularly cal- 
culated for the protection of the southern states. He then mentioned 
what success the French had had, in other countries into which their 
emigrants had been admitted. What intrigues they had carried on in 
Venice, Switzerland, Holland, &c, all which countries had been ex- 
punged from the list of republics, and added to the already overgrown 
dominions of France. These events, he said, had been brought about 
chiefly by stirring up the people to discontent, by alien incendiaries. 
It was necessary then, that the United States should adopt proper mea- 
sures to prevent such mischiefs. To that end, said he, let us cherish 
the law passed for the purpose. He then proceeded to relate the late 
conduct of the French towards us, and what description of persons 
had migrated from that country to the United States. The most noted 
characters of whom were Volney and Talleyrand. He made several 
remarks upon the conduct of both of them while in this country, but 
gave a particular account of the peregrination of the latter from Eu- 
rope to America, thence back again to Europe : how he was denounced 
and proscribed by his countrymen, restored to favour again, and in 
the end preferred to the ministerial office which he then held. It be- 
hoved the people of this country, therefore, to be on their guard against 
him and all the rest. He wished, he said, to conclude; for he was 
conscious that he had fatigued himself, and he supposed the commit- 
tee also. He should be glad, however, to be permitted at some other 
time to deliver his sentiments in regard to the sedition law. He thought 
indeed, that the best way thereafter would be to discuss one law at a 
time. He further observed, that the members of that congress which 
had passed those laws, had been, as far as he could understand, since 
generally re-elected : therefore, he thought the people of the United 
States had decided in favour of their constitutionality, and that such 
an attempt as they were then making to induce congress to repeal the 
laws, would be utterly nugatory. 

Mr. RUFFIN arose next, and said that he was convinced his abili- 
ties would not enable him to place the subject in such a light as it 
would be placed before it was finished. However, as it was a matter 
of much importance, he was induced to assign his reasons for the vote 
12 



90 

which he was about to give. He should confine himself, he said, to 
two points : the constitutionality of the Jaws, and the consequences. 
The alien law, he said, was unconstitutional in two points : and, after 
observing that, although an alien did not enjoy all the rights of a citi- 
zen, yet he enjoyed some, he proceeded to show in what points that 
law was unconstitutional. He thought it so for two reasons: 1st. Be- 
cause it blended several powers in one person ; and 2dly. Because it 
contained powers not granted to congress by the constitution. He 
then proceeded to state how the alien was to be deprived of the trial 
by jury, and to be banished for particular acts, at the time of their 
commission, innocent, but which might, by a retrospective operation 
of the said act, (the president being thereby armed with legislative 
and judicial, as well as executive power,) be made criminal. The 
gentleman from Prince George, he said, had admitted that if congress 
were to pass a law to exclude all aliens forever, prior to the year 1808, 
it would be unconstitutional. Mr. Ruffin then begged leave to enquire 
as to the difference of the effect which such a law would have from 
the present alien act of congress, should congress annually think pro- 
per to re-enact the law as it now stood, until 1808. The principle 
and effect, he said, were the same. The only rational conclusion 
then, to be drawn from the concession of the gentleman was, that if 
congress be incompetent to the passage of a permanent law, (except, 
indeed, where the constitution interposes,) they must be incompetent 
to the passage of a temporary one. But the gentleman, he said, had 
attempted to prove the constitutionality of that act, by saying that con- 
gress had passed, or might pass, laws respecting alien enemies. The 
cases, however, Mr. Ruffin said, were extremely different. Congress 
alone could determine upon war or peace : consequently, alien ene- 
mies were proper subjects for congressional legislation : but that alien 
friends were exclusively subject to the sovereignty of the several indi- 
vidual states; as the twelfth article of the amendments to the federal 
constitution expressly declares, that " the powers not delegated to the 
United States, by the constitution, nor prohibited by it to the states, 
are reserved to the states respectively, or to the people." And as at 
the same time, he said, the only power given by that compact to the 
general government, over alien friends, was in the ninth section of the 
first article, it must follow that this was one of the rights reserved to 
the states. The gentleman last up, he said, had contended however, 
that this power was rightfully exercised by congress, and had taken 
the broad ground of construction and implication, upon which to 
erect his fabric. Construction and implication, Mr. Ruffin said, was 
a doctrine which he had hoped was banished from the councils of 
America. It was a doctrine which the people of America had unani- 
mously and uniformly protested against. It was the exercise of this 
kind of right by the British parliament, which involved us in a war 
with that government. It was to guard against the exercise of such 
a power, that the state constitutions were formed : and it was that ab- 
horrence in America to constructive and implied rights, that induced 
the specific delineation of congressional powers. Let them admit, he 
said, the position of the worthy member, and then mark the extent to 
which it would carry them. In the preamble to the constitution, the 






91 

causes designed to be produced by that compact, are enumerated. 
Amongst them the following: "to provide for the common defence, 
promote the general welfare :" and in the eighteenth clause of the 
eighth section of the first article, " to make all laws which shall be 
necessary and proper for carrying into execution the foregoing powers, 
&c," were the parts of the constitution, by which it was contended, 
that those constructive and implied rights are given. Suppose, said 
Mr. Ruffin, the general government should be of opinion that those 
objects would be produced in an higher degree by continuing the pre- 
sent members in office for ten years, or for life? Was there any per- 
son who then heard him, who would think such an exercise of power 
legitimate? Certainly not. Yet he contended that such a power was 
as impliedly given by the constitution, as that which congress had taken 
upon itself to exercise over alien friends. Mr. Ruffin then concluded 
by observing, that as it was then late, and the committee appeared to 
be fatigued, he should reserve the rest of his observations for another 
opportunity. 

The committee then rose, reported progress, asked and had leave 
to sit again. 



IN THE HOUSE OF DELEGATES, 

Saturday, December 15, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. BracJcenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

Mr. MERCER arose and said, that he felt great difficulty in pre- 
vailing upon himself to take a part in the very interesting discussion 
which had arisen, and would probably be continued, upon the resolu- 
tions submitted to the committee. This difficulty was produced, not 
by any want of confidence in the rectitude of the opinion which he 
entertained, or in the purity of the motives that would ultimately di- 
rect his vote. On the one hand, he was deeply impressed with the 
importance of the subject; on the other, he felt and acknowledged 
his own inability to do justice to its merits ; but, in proportion to the 
magnitude of the question, was his solicitude to explain the principles 
upon which his opinion was formed. The manner in which the laws 
complained of, had been defended here and elsewhere, was to his mind 
more alarming than the laws themselves. It showed that gentlemen 
were ready to defend, not only existing violations of the federal con- 
stitution, but any infractions which might hereafter be committed upon 
it. For, if the opinions which the gentleman from Prince George 
submitted to the committee yesterday, be correct, the nature of that 
constitution was changed. It was not what the people and states un- 
derstood it to be at the time of its ratification. Its powers were en- 



92 

larged to a dangerous extent. It could no longer be considered as 
producing a confederation, but certainly established a consolidated 
government. 

Every question, Mr. Mercer said, which related to the respective 
powers of the state and general government, was, in itself, of magni- 
tude sufficient to engage the whole attention of gentlemen who were 
desirous of preserving to each its proper powers, and to maintain that 
entire independence which belongs to each, and which each had a 
right to enjoy. He was, therefore, surprised, when he heard the mem- 
ber from Prince George, yesterday, calling the attention of the com- 
mittee to subjects, which, however interesting in themselves, could 
not be supposed to have the most remote connection with the resolu- 
tions upon the table. Those, said Mr. Mercer, embrace certain con- 
stitutional questions, which ought to be considered by themselves; 
they point out a plan by which the friends of the paper believe a re- 
peal of the supposed unconstitutional acts would be most readily ob- 
tained. It was a solemn appeal to the understanding of the commit- 
tee ; yet, the injuries of France to America, her excesses in Europe, 
always magnified and misrepresented by the enemies of freedom in 
every quarter of the world, and the misfortunes of St. Domingo, had 
been pressed with considerable force by that same gentleman. This 
effort, Mr. Mercer said, had been practised with great effect in the 
community. It was scarcely possible to consider the measures of our 
own government, and candidly to examine their influence upon the 
public happiness, without being subject to the imputation of an undue 
attachment to a foreign power. He rejoiced in knowing, that as long 
as the charge had existed, and as often as it had been repeated, not a 
single instance had been produced throughout America, by which it 
could be supported. It was used as the apology for a system of mea- 
sures which could not have been adopted, without receiving the uni- 
versal disapprobation of all who have a knowledge of the principles of 
the federal constitution, and of the clear limitation of power contained 
in that instrument. For his part, he did not see how a view of the 
insults offered to America by France, could decide the merit of the 
resolutions. He hoped the committee were ready to repel the former, 
as well as to consider the latter. To preserve the constitution, was to 
preserve the union ; and to maintain that, upon the principles upon 
which it was originally formed, was to bid defiance to every foreign 
power, whose conduct might be hostile to the independence and rights 
of our country. 

The gentleman from Prince George had told the committee that the 
resolutions introduced by the gentleman from Caroline were calculated 
to rouse the people to resistance, to excite the people of Virginia 
against the federal government. Mr. Mercer did not see how such 
consequences could result from their adoption. They contained no- 
thing more than the sentiments which the people in many parts of the 
state had expressed, and which had been conveyed to the legislature 
in their memorials and resolutions then lying upon the table. He 
would venture to say, that an attention to the resolutions before the 
committee would prove that the qualities attempted to be attached to 
them by the gentleman could not be found. He begged leave to read 



93 

the first and second clause, in which it is declared, "that the general 
assembly doth unequivocally express a firm resolution to maintain and 
defend the constitution of the United States, and the constitution of 
this state ; and that they will support the government of the United 
States in all measures warranted by the former," and to maintain the 
union, " it pledges all its powers." Language less calculated to rouse 
resentment could not be used : nor were the resolutions addressed to 
the people, and if they were, Mr. Mercer said they would not have 
been objected to by him upon that ground. If the people were not to 
be confided in, we were wretched indeed. In whom were we to con- 
fide, if not in the people 1 In their virtue and patriotism were all his 
hopes placed. The history of government had been the history of 
crime and usurpation. In the purity of administration he could not 
solely confide. The people were the best, and the only defenders of 
their liberties ; when they became ignorant of the proceedings of their 
own governments ; when public virtue should cease to be their ruling 
principle, their liberties would experience the same fate, which those 
of other nations had undergone : power would stand in the place of 
the constitution. He hoped no arguments derived from the probable 
consequences upon the people of adopting the resolutions, would pre- 
vent the judgment of the committee from being calmly exercised upon 
them. 

The right of the state government to interfere in the manner pro- 
posed by the resolutions, Mr. Mercer contended, was clear to his mind. 
He asked, what were the rights belonging to the state governments 
prior to the existence of the federal constitution 1 They were those 
which belong to all sovereign and independent states. They were per- 
fect and complete. The federal constitution derived its powers from 
the people and the states, and could give none but what had been pre- 
viously in the possession of the states or the people, and by them dele- 
gated to the general government. It would not be said, that all power 
was delegated to the general government : though it had indeed been 
improperly said, as he should attempt to show before he took his seat, 
that the powers of the federal government were general. He should 
attempt to show they were special, and that none but what were spe- 
cially delegated, could be exercised. It appeared to him, that from 
the operation of the two separate governments in the same community, 
there resulted, three species of rights to be exercised. There were 
rights which the " federal government could exclusively exercise, with- 
out any interference on the part of the state government; there were 
rights which could be exercised by each government at the same time, 
and there were rights which belonged exclusively to the state govern- 
ment. The latter embraced all which had not been delegated in the 
federal constitution to the general government, or prohibited to the 
states by that instrument. That portion of power which had been 
delegated to the federal government, did not affect the sovereignty of 
the states," over the reserved rights ; that sovereignty continued en- 
tire ; and remained as to the reserved rights, what it had been with 
respect to all the rights, before the federal constitution. If the re- 
maining rights are sovereign, the states whose sovereignty is invaded 
by any act of the general government, have it as fully in their power 



94 

to defend and protect these, as they would have had to defend any of 
their rights if attacked by a foreign power, before the general govern- 
ment had a being. The state believed some of its rights had been 
invaded by the late acts of the general government, and proposed a 
remedy whereby to obtain a repeal of them. The plan contained in 
the resolutions appeared to Mr. Mercer the most advisable. Force was 
not thought of by any one. The preservation of the federal constitu- 
tion, the cement of the union, with its original powers, was the object 
of the resolutions. The states were equally concerned, as their rights 
had been equally invaded ; and nothing seemed more likely to produce 
a temper in congress for a repeal, than a declaration similar to the one 
before the committee, made by a majority of states, or by several of 
them. The states had the power of communicating together in pro- 
ducing amendments to the federal constitution. A proposition for 
this purpose, had been presented to the legislature during the present 
session, from the state of Massachusetts, and would be acted upon be- 
fore their adjournment. It appeared strange that the slates might 
communicate together to amend the constitution, and were not per- 
mitted to do so, in order to protect the same when amended : that they 
might communicate together when they chose to give away their rights, 
but could not do it when their reserved rights were invaded. The re- 
verse of this, Mr. Mercer was happy in believing was true. The opi- 
nion contained in the resolutions was coeval with the constitution it- 
self, and had been maintained by the most enlightened commentary 
which had been produced in America upon that instrument, (he al- 
luded to a collection of papers written under the signature of Publius, 
in the state of New York,) when the constitution was under considera- 
tion, and generally known by the name of the Federalist. The union 
of talents exercised in the production of this work, had justly entitled 
it to the attention of every American who is anxious to know the true 
meaning of the federal constitution, and the real intent of its powers : 
and though some of its opinions may be erroneous, it was still the 
best authority that could be produced. The time of its being written 
was extremely favorable to the impartiality of its sentiments, as that 
vindictive party spirit which had now so unhappily extended its bane- 
ful influence to almost every individual in the community, could not 
have affected its supposed authors, one of whose merits had so justly 
been resounded a few days ago from every side of this house. This 
authority, when speaking of the checks which the state governments 
would always have upon the general government, and of the little pro- 
bability of the latter engrossing powers unobserved, uses the following 
strong and decided language : " If the majority (in the general go- 
vernment,) should be really disposed to exceed the proper limits, the 
community will be warned of the danger, and will have an opportu- 
nity of taking measures to guard against it. Independent of parties in 
the national legislature itself, as often as the period of discussion ar- 
rived, the state legislatures, who will always be not only vigilant, but 
suspicious and jealous guardians of the rights of the citizens against 
encroachments from the federal government, will constantly have their 
attention awake to the conduct of the national rulers, and will be 
ready enough, if any thing improper appears, to sound the alarm to 



95 

the people, and not only to be the voice, but if necessary, the arm of 
their discontent:" vol. 1st, page 166. Their sentiments embraced 
the plan proposed in the resolutions. They spoke a language much 
stronger than any which these would be found to contain. We do 
not wish, said Mr. Mercer, to be the arm of the people's discontent, 
but to use their voice. The same authority has maintained the right of 
the states to interfere in the manner expressed in the resolutions sub- 
mitted to the committee, in terms still more applicable. "It may safely 
be received as an axiom in our political system, that the state govern- 
ments will in all possible contingencies afford complete security against 
invasion of the public liberty by the national authority. Projects of 
usurpation cannot be masked under pretences so likely to escape the 
penetration of select bodies of men, as of the people at large. The 
legislatures will have better means of information. They can disco- 
ver the danger at a distance ; and possessing all the organs of civil 
power, and confidence of the people, they can at once adopt a regular 
plan of opposition, in which they Can combine all the resources of the 
community. They can readily communicate with each other in the 
different states; and unite their common forces for the protection of 
their common liberty:" vol. 1st, page 176. Here, said Mr. Mercer, 
we see the opinion of the resolutions so clearly admitted, as to be 
considered a "political axiom in our system." The right of two dif- 
ferent states " to communicate with each other," is here supported by 
the best defence which the federal constitution ever received : not 
only this right is defended, but were the states to " adopt a regular 
plan of opposition, in which they should combine all their resources," 
this authority addressed to the people, at the time the constitution 
was under consideration, would justify the measure. But no such 
wish was entertained by the friends of the resolutions. Their object 
in addressing the states, is to obtain a similar declaration of opinion 
with respect to several late acts of the general government, which 
seem to violate some of the most invaluable rights secured by the 
charter of their own existence ; and thereby to obtain a repeal of 
measures unconstitutional in their nature, and hateful in their ten- 
dency : measures so justly obnoxious to the people, that they would 
have found few advocates, but for the vain pretence of their being ne- 
cessary to defend us against the attempts of France; measures that 
have divided the community at a moment when union of sentiment 
is ardently to be wished for by every friend to the interest of his 
country. 

The gentleman from Prince George had introduced the opinions of 
a learned writer upon the law of nations, to prove which were the 
rights of aliens. Though Mr. Mercer did not believe this class of men 
stood in a foreign country upon the narrow ground in which it was at- 
tempted to place them, yet, he deemed it entirely unnecessary to en- 
quire what was the nature and extent of their rights ; he should con- 
tend that the federal government possessed no power over aliens in 
time of peace ; and, therefore, whatever power a sovereign state could 
exercise with respect to them, under the general law of nations, that 
power belonged to the state, and not to the general government; the 
rights of sovereignty did not attach to the federal government in all 



96 

their extent : it was sovereign only with respect to the rights which it 
could exercise exclusively: it was limited in its operation, and the 
boundaries of its authority clearly ascertained ; unless, therefore, this 
power over aliens should be found vested in the general government 
by the terms of the constitution, he could not admit it to be derived 
from implication, or from any general clause in that instrument. Im- 
plication would lead us into an endless discussion. The plain sense 
and meaning of the constitution should be our guide. In some part 
of the gentleman's argument he admitted the limited powers of the 
constitution ; in others, he certainly advanced opinions destructive of 
that limitation. To show that the powers under the constitution were 
limited and special, Mr. Mercer, begged leave to refer to the constitu- 
tion itself. In the eighth section and first article, there was found a 
special enumeration of powers; most of the great powers of congress 
were here particularly defined. Those which they had a right to ex- 
ercise, and which were not in this section, were as clearly ascertained 
in other parts of the instrument : why was this cautious enumeration 
of powers necessary, except to keep congress within the strict and 
literal meaning of the constitution, and to prevent the assumption of 
power under any general clause? It was intended to prevent them 
from exercising any power, but what was given. If opinions extem- 
poraneous with the original discussion of the constitution in Virginia, 
can serve us in ascertaining it3 true meaning, (and they certainly 
ought,) he would refer gentlemen to the debates in the convention of 
this state. The opponents of the constitution were apprehensive, that 
by implication, or some general phrases, congress might assume powers 
not intended to be conveyed. The advocates of that paper declared, 
in every day's debate, that these apprehensions were without founda- 
tion : that the language was so clear, and its powers so well defined, 
that none could be exercised under it by implication, or that was not 
found upon its face. Though the evidence of every member who 
wished the constitution ratified, might be produced upon this subject, 
he would mention the opinions of only two gentlemen belonging to 
that body. " Mr. John Marshall asked if gentlemen were serious 
when they asserted that if the state goverments had power to interfere 
with the militia, it was by implication. If they were, he asked the 
committee whether the least attention would not show they were mis- 
taken : each government was to act according to the powers given it. 
Would any gentleman deny this? He demanded if powers not given 
were retained by implication? Could any man say so? Could any 
man say, that this power was not retained by the states, as they had 
not given it away 1 For, does not a power remain till it is given 
away? The state legislatures had power to command and govern 
their militia before, and have it still, undeniably, unless there be some- 
thing in this constitution that takes it away." Though the limited 
powers of the constitution were in this opinion insisted on, there was 
still higher authority. It was the instrument of ratification adopted 
in the convention of Virginia, which had been mentioned by the gen- 
tleman from Caroline. It contained the opinion of the convention, 
and declares, " that every power not granted, remains with the people 
and at their will : that, therefore, no right of any denomination, can 



97 

be cancelled, abridged, restrained or modified, by the congress, by the 
senate, or house of representatives, acting in any capacity, by the pre- 
sident or any department or officer of the United States, except in 
those instances in which power is given by the constitution for those 
purposes; and that, among other essential rights, the liberty of con- 
science and of the press, cannot be cancelled, abridged, restrained or 
modified, by any authority of the United States." We see what was 
the opinion of the state of Virginia, with respect to the powers of the 
constitution, when she was called upon to ratify or reject it. But, to 
remove all doubts, immediately upon its going into operation, certain 
amendments were made, among which, is the following : " The 
powers not delegated to the United States by the constitution, nor pro- 
hibited by it to the states, are reserved to the states, respectively, or to 
the people." This amendment, now a part of the constitution, ought 
to fix the real extent of the powers of congress. But, the gentleman 
was not satisfied with it, because the word expressly, was not to be 
found there. Mr. Mercer hoped the committee would not believe this 
single term essential to ascertain the limitation of power under which 
congress were bound to act. The words of the amendment were ge- 
neral, and conveyed a certain meaning. It was that which the face 
of the constitution, in its original form, would warrant, which cotem- 
poraneous opinions had maintained, and which the convention of Vir- 
ginia had declared to be true. It was impossible for language to be 
so explicit as to produce a clause that might not be subject to similar 
objections; for, if this term had been used in the amendment, gen- 
tlemen might have thought it still defective, as others equally strong 
might have been left out. He therefore supposed, as these evidences 
ascertained the powers of the federal constitution to be special, and 
as no power over aliens, such as had been exercised by congress, in 
the law so generally obnoxious, had been, or in his opinion, could be 
shown to exist in that body, the law itself must be considered repug- 
nant to the constitution, and as invading the rights of the states. 

Many of the remarks of the gentleman from Prince George, were 
intended to show the expediency of the law, and the inconveniences 
that might arise from the want of the power in congress to pass it. 
Mr. Mercer considered these remarks entirely foreign from the enquiry 
before the committee. The only question ought to be, whether it was 
constitutional or not: if it was not, in his opinion, a violation of the 
constitution, which ought to be held sacred, he declared that he would 
not at this time, thus publicly deny its expediency. But there would 
be no period so critical, as to justify silence upon a departure from 
the constitution. It might be believed, that temporary advantages 
would result; but permanent evil would be the certain consequence: 
for, if there was a maxim in American politics, it must be, that no law 
could be expedient, which was unconstitutional. If it was found in- 
convenient that congress had not this power, the remedy was plain : 
perhaps it was the best feature in the instrument that pointed out the 
manner in which itself could be amended. It did not consider the 
present provisions in it, as the unalterable effort of the best reason, 
but left them to the operation of time and experience, by which their 
defects might be unfolded : when these appeared, the remedy was in 
13 



98 

amending the constitution, and not in usurping powers by construc- 
tions, so highly forced, as to leave its meaning entirely uncertain ; 
and to lay the foundation for administering the government upon 
principles unacknowledged by the constitution, and unknown to the 
states and the people at the time of its adoption. But the gentleman 
had supposed, that under the aid of necessary implication, congress 
possessed the power of passing the alien friend law ; and made his 
appeal to the last clause in the eighth section, which said, that con- 
gress should have the power " to make all laws which shall be neces- 
sary and proper to carry into execution the foregoing powers, and all 
other powers vested by this constitution in the government of the 
United States, or in any department or officer thereof." Mr. Mercer 
said, this clause had been called in the convention of Virginia, by the 
opponents of the constitution, the sweeping clause. But it was evi- 
dent, it referred only to the powers expressly " vested" in congress by 
the constitution. It could give no new power. It would be absurd 
to suppose, that after a special enumeration of powers, limited by the 
terms of the grant, that any general expressions could so operate, as 
to produce an increase of authority. It had not been shown to his 
satisfaction, how the law complained of, was " to carry into execu- 
tion" any power vested by the constitution in the government of the 
United States, or in any department or officer thereof." Under the 
construction that had been given to it, it involved new powers, no 
where to be found delegated in that instrument : for the true exposi- 
tion of this clause* he would now refer to the opinion of the other 
gentleman in the convention, to whom he had alluded. Mr. Madison, 
speaking of this clause, said, " It is only superfluity. If that latitude 
of construction, which he (Mr. Henry) contends for, were to take 
place, with respect to the sweeping clause, there would be room for 
those horrors. But it gives no supplementary power. It enables 
them to execute the delegated potvers. It is at most explanatory ; for 
when any power is given, its delegation necessarily involves authority 
to make laws to execute it." 

" With respect to the supposed operation of what was denominated 
the sweeping clause, the gentleman, he said, was mistaken ; for, it 
only extended to the enumerated powers. Should congress attempt to 
extend it to any power not enumerated, it would not be warranted by 
the clause." This opinion must be considered as the just one. It 
had been maintained by the writer which he had cited, the Federalist. 
The constitution itself warranted the truth of it; but, there ought 
to be no doubt after reading the amendment, which had already been 
stated. If the power exercised in the law, was not enumerated, 
neither this, nor any other general clause, could give it to congress. 

The gentleman had called upon the committee, to show in what 
part of the constitution the powers of congress, with respect to foreign 
nations, were stated. Mr. Mercer hoped he did not mistake his re- 
mark, for it was a very important one. If it was true that these great 
powers, certainly exercised by congress, were not vested in that body 
by express terms, but were derived to them by construction or impli- 
cation, the deduction that would naturally flow from such a truth, 
would be fatal to the constitution. It was, if powers so great could 






99 

be used, without being specially delegated, it showed the extent of 
implication ; and under its operation, other powers equally important, 
and among them, that which congress had exercised over aliens, might 
be assumed, but such a position is destructive to the constitution. 
Mr. Mercer rejoiced in believing it could not be supported by any ar- 
gument drawn from the powers of congress over foreign relations; 
for none were more expressly delegated than these ; he begged leave 
again to refer to that instrument, which should be our constant guide. 
In the 10th section of first article, it is declared that " no state shall 
enter into any treaty, alliance or confederation." And that " no 
state shall, without the consent of congress, enter into any agreement 
or compact with another state, or with a foreign power, or engage in 
war, &c." This proved that all power with respect to foreign connec- 
tions was taken from the states. It was not among their reserved 
rights ; nor could they exercise it conjointly with congress, because 
they were deprived of it by negative words in the constitution. It 
belonged exclusively to the general government. To show this, he 
read the following clauses in the constitution : " The congress shall 
have power to regulate commerce with foreign nations." " To estab- 
lish an uniform rule of naturalization." " To declare war and grant 
letters of marque and reprisal." When speaking of the powers of 
the president, it says, " He shall have power, by and with the advice 
and consent of the senate, to make treaties, &.c." " And shall nomi- 
nate, and by and with the advice and consent of the senate, shall ap- 
point ambassadors, other public ministers and consuls." " He shall 
receive ambassadors and other public ministers." These clauses em- 
brace all the great objects of a foreign intercourse ; they make it clear, 
that the powers of the general government upon this subject, are ex- 
pressly delegated, and depend not upon nice constructions or implica- 
tion. 

In these remarks, Mr. Mercer said, he had attempted to show that 
the federal coustitution was a limited grant of power : that the power 
which congress had exercised in the case of the alien law, had been 
no where delegated to them by that instrument, and ought not to be 
considered within their reach, from implication. That if congress 
did not constitutionally possess the power over aliens, which they had 
exercised, the exercising it was an invasion of the sovereignty of the 
states; and whenever this took place, the states had a right to com- 
municate with each other, in the manner contemplated by the resolu- 
tions now before the committee. But if he had been convinced that 
this power was vested in congress, the manner in which they had 
used it, was equally repugnant to the constitution, and subversive of 
some of the most valuable provisions contained in it. It was as ne- 
cessary they should preserve the distribution of powers actually dele- 
gated, according to the mode prescribed in the constitution, as it was 
for them not to assume powers which had never been delegated. It 
was as necessary that one department of the government should not 
be permitted to use authority, to the constitutional exercise of which 
only the three branches were competent, as that the whole should as- 
sume powers which neither had a right to exercise. The objections 
to this act had been so often urged, and the public attention so much 



100 

excited, that it would be useless to dwell upon them at this time : he 
would briefly mention the objections which he felt to the act, even if 
congress had the power over aliens which they had exercised. His 
first was, that it placed in the hands of the president an union of 
authority, which by the principles of free government, should always 
be kept separate and distinct. It gave him the right to exercise le- 
gislative, judicial and executive powers, which were intended to be 
kept apart by the constitution, and never could be united in the same 
individual, or in the same department of government, without pro- 
ducing a real despotism. To prove that legislative power was vested in 
the president by this law, he asked what was the distinguishing cha- 
racteristic of that power, or the highest act that could be performed by 
it ? It was to prescribe a rule of conduct, commanding what was 
right, and prohibiting what was wrong. What was the rule of con- 
duct prescribed to the alien by this law ? What was he commanded 
to do, and what to avoid 1 There was no rule of conduct laid down 
in the law. There was no crime defined. Even the president was 
not required to say what the alien's duty should be. Every thing was 
confined within his own breast. The class of men intended to be in- 
volved under this law, could not know they had sinned, until the pun- 
ishment was upon them. If he then prescribed the rule of conduct 
for aliens, he also had the right under the law to judge when that rule 
was violated : he was the executive department of the government 
constitutionally, and the duties of legislating and judging were an- 
nexed to his new office by this law. The second objection was, that 
it destroyed the trial by jury, which he considered was extended to 
all persons by the constitution. The terms were as general, and as 
comprehensive, as language could make them. He begged leave to 
refer to them. " The trial of all crimes except in cases of impeach- 
ment, shall be by jury." " No person shall be held to answer for a 
capital or otherwise infamous crime, unless on a presentment or indict- 
ment by a grand jury, &c." "Nor be deprived of life, liberty or pro- 
perty, without due process of law." " In all criminal prosecutions, 
the accused shall enjoy the right to a speedy and public trial, by an 
impartial jury, &c." " be informed of the nature and cause of the ac- 
cusation: to be confronted with the witnesses against him: to have 
compulsory process for obtaining witnesses in his favor ; and to have 
the assistance of counsel for his defence." These just, humane, and 
most invaluable of all privileges, were taken from the alien : his 
" liberty" was to be suspended without any " crime" being denned, 
which he ought to avoid ; without any " trial by jury," of which " no 
person" is to be deprived under the constitution ; there was no "in- 
formation of the nature and cause of the accusation" to be communi- 
cated to him ; he was " to be confronted with no witnesses ; counsel 
could not be heard in his favor.;" his liberty depended upon the mercy 
and justice of an individual. The third objection was, that it vir- 
tually destroyed the right of the states under the ninth section of the 
first article of the constitution ; for though the states might admit the 
" migration or importation" of such persons as they might think pro- 
per prior to a certain period, it was to little purpose, if the president, 
influenced by his own suspicions, could send them away. The argu- 



101 

ment of the gentleman from Prince George, seemed to relinquish the 
point. He observed, that the law would have been unconstitutional, 
if it had been a permanent one, passed prior to the year 1808, since 
it would then defeat this section. Mr. Mercer said, he could not see 
how its being temporary, would prevent the same effect being pro- 
duced : for, if the power of congress could pass such a law for two 
years, it might extend to the year 1808. If they possessed the right 
to originate the law, and keep it in force for any term, however short, 
they could certainly defeat the ninth section altogether ; because, as 
often as the period arrived when this temporary law was to expire, 
they had only to pass it again for a limited time ; and by thus keeping 
it temporary, bring about the year 1808 ; after which the gentleman 
supposed the right would be in congress. The law being only a tem- 
porary one, therefore, could not possibly prove it to be constitutional. 

Much had been said, by the member from Prince George, respect- 
ing the conduct of aliens, and the dangers that were to be appre- 
hended from them. Mr. Mercer did not suppose that the friends of 
the resolutions, felt it their duty to defend, or to blame that conduct, 
whatever it might have been, without having ever understood any acts 
to have been performed by that class of men by which American 
rights had suffered. The statement of the gentleman might be true, 
and still it did not affect the question before the committee. The ob- 
ject of the resolutions, was not to defend aliens, but to protect the 
constitution, which had been violated in the case of these men. If 
under the intention of removing dangerous aliens, the principles of 
that instrument would be openly violated, and some of its wisest pro- 
visions set aside, the same might take place with respect to native ci- 
tizens. If it was infringed upon in one instance, the same might 
happen in any other. 

With respect to the sedition law, as it was generally called, Mr. 
Mercer said, he would not take up the time of the committee, in ma- 
king any observations upon it. He was willing to let the proof of its 
unconstitutional quality rest upon the argument of the gentleman from 
Caroline. He would only say, it was odious in his sight. It was cer- 
tainly unnecessary, unless the general government had reason to doubt 
the virtue and patriotism of the people. If that government would 
pursue measures compatible with the constitution, and calculated to 
preserve the country in a state of peace, and not hasten that unhappy 
crisis with which we were threatened, when war should be found un- 
avoidable, every citizen would be ready to defend his country's rights 
against the attempts of any nation upon earth. Mr. Mercer believed, 
if it had not been for the unfortunate difference between America and 
France, there would have been few voices ready to approve of several 
of the late acts of the general government. That difference had been 
made the pretext for exercising power in a manner, which two years 
past, would have been universally condemned. He hoped the com- 
mittee would distinguish between the aggressions of France, and the 
operations of our own government. The alarm of foreign invasion, 
created by government, was not a modern thing. When power wished 
to encroach, the same had been excited in every age and country. At 
this time, two instances occurred to him. When Charles the 7th of 



102 

France, wished to establish a standing army in that country, he told 
the people it was necessary to be ready against invasions from England. 
But when all danger was removed, the army was kept up, and afflicted 
the nation for centuries. Charles was the first king of France who 
levied a tax without the consent of the states general. When Cardi- 
nal Ximenes introduced a standing army into Spain, the people were 
informed it was necessary to protect them against the invasion of the 
Moors from Africa ; but when these were expelled the country and 
their powers destroyed, the army was continued. History afforded 
many similar instances. It proved, that the moment for power to en- 
large its privileges, was that of public agitation and alarm : he would 
make no inferences with a view of applying them to the general govern- 
ment. Every gentleman in the committee might make his own de- 
ductions. Mr. Mercer concluded by observing, that he should vote 
for the resolutions, unless arguments could be offered to prove to his 
satisfaction, that the acts complained of were constitutional. 

Mr. POPE arose next, and made several general observations in 
answer to those which had fallen from Mr. Geo. K. Taylor, respect- 
ing the necessity of deliberation before decision in favor of the alien 
law, and concerning Volney and Talleyrand. He then proceeded to 
observe, that as to Talleyrand, the gentleman from Prince George was 
not correct as to what he had related of him ; but besides, that he 
had not related the whole story. He had represented him to be a 
great rascal indeed, and a very great rascal he himself would acknow- 
ledge he was. But that he would still give them a further account of 
that Mr. Talleyrand, as true as that which the gentleman from Prince 
George had related. He then proceeded to mention that in the course 
of Talleyrand's stay in America, he had been for some time much 
countenanced by some of the conspicuous characters in New York, 
of whom he particularly mentioned the gentleman who never broke a 
command, who never disturbed the quiet or repose of any family ; that 
gentleman who inviolably kept the sacred vow he made to his bride 
on the day of marriage. But as soon as these gentlemen discovered 
his political opinions to be different from what they supposed them to 
be when they admitted him into their society, they instantly broke off 
all communication with him, and ever afterwards reviled and perse- 
cuted him. He made some observations respecting Volney; and then 
asked how the gentleman from Prince George had found out the story 
which he had related of Volney, when Porcupine or Goodloe Harper 
never could? Perhaps he had learnt it from Billy Wilcox ; and who 
was he 1 A mere automaton. He could say this — he could say that — 
any thing or nothing. He was directed altogether by the breaker of 
the matrimonial vow. The gentleman from Prince George had spo- 
ken of Frenchmen sneaking away. But sneaking as they were, he 
said, he believed all Europe sneaked before them. However, he said, 
he was no charopion for the French, any more than for the British. 
He thought we had no business with either of them. He then spoke 
of British aggressions upon our commerce. But these, he said, were 
not felt by the executive of the United States, as well as many of its 
citizens. He then complimented Mr. George K. Taylor upon his 



103 

talent in moving the passions. He had exercised that talent so effec- 
tually a session or two before as to draw tears from the members of 
that house, (alluding to the speech delivered in favor of the new cri- 
minal law,) and he himself must confess indeed, that the gentleman 
had, on the subject then before them, dealt more in pathos than in 
argument. He then asked why the gentleman, when reviling Genet, 
did not say something of Liston too? He believed that he (Liston) 
had done us as much harm as ever Genet did. As a proof, he in- 
stanced the Spanish transaction. But when that was stated to that 
great man, Mr. Pickering, he said that we were to pay no kind of cre- 
dit to it, for he was satisfied that our good allies the British, did not 
intend to injure us. The gentleman from Prince George, he said, 
had introduced a damsel, and that was the damsel of liberty. When 
he had done so, he, (Mr. Pope,) cold as his blood was, confessed that 
he was seized with an ecstacy. But when at the same time the gen- 
tleman would not permit that damsel to remain within these walls, he 
acknowledged that his feelings were very much wounded indeed. For 
he (Mr. Pope,) was fond of all damsels, but particularly so of the 
damsel of liberty. And if he were so, cold as his blood was, what 
might they not expect from that young, athletic gentleman, whose 
warmth of blood was so plainly visible. The same gentleman, he 
said, had also dwelt upon the Saint Domingo horrors. The alien law, 
he (Mr. Pope,) said, had not removed them. He believed all the 
emigrants from that place were aristocrats : but they had not been re- 
moved. The gentleman had also mentioned the determinations of 
the other states. As well as he could recollect, he said, he conceived 
that such determinations extended only to an approbation of the mea- 
sures of the executive in regard to the negociation with France. But 
be they what they would, we were not bound to follow their example. 
Kentucky had differed from them. He asked who had knocked at 
the doors of the aristocratic senate of the United States but Virginia? 
She had been the chief means of opening them. In that instance 
then, she had weight. He wished, therefore, that on this occasion 
they should do what they thought right. That too, might probably 
have weight. If it should not, they would at least discharge their 
duty. At any rate, he thought the determination according to the re- 
solutions which they were about to make, would not lead to war, as 
was apprehended ; and therefore they might safely agree to pass them. 
However, he said, he did not feel himself so rigidly attached to the 
resolutions but that he would be willing to agree to any modification 
of them to accommodate gentlemen, provided the substance of them 
should be so retained as to go to declare the laws of congress under 
their consideration, unconstitutional. 

Mr. JOHN ALLEN arose next, and said, he was not accustomed 
to make apologies for any thing he wished to say in this house, nor 
should he do so in the present case ; the subject was of too much im- 
portance to require any. And, notwithstanding his ill state of health, 
he rose to give his feeble aid in favor of the wounded daughter of 
liberty. In deciding on a constitutional question, he did not expect 
that the understanding was to be banished, and the passions only left 



104 

to be their guide. But, he found that the gentleman from Prince 
George, through the whole of his lengthy harangue, relied solely on 
the force and effect of the latter. That gentleman informed them 
that he should confine his observations to the alien law, and attempt 
to prove it constitutional. How did he do this ? By describing, in 
the most terrific colours, the conduct of the French towards us and 
other nations ; and then asserting, that the alien law was made to pro- 
tect us from the French. But, before the gentleman indulged himself 
in his description of the cruelties and aggressions committed by the 
French, he should have proved that this law related only to that na- 
tion. But, it clearly was not so. It extends to all nations alike, and 
without discrimination. The law need only be read to prove the truth 
of this assertion. 

Unless, then, it appeared that we were threatened with, or had dan- 
ger to apprehend from, all the nations on earth, that law could not be 
justified, even by the gentleman's own arguments. The gentleman 
had further observed, that if this law had been permanent, it would 
be unconstitutional ; but, if temporary, it would not. Mr. Allen said, 
in his opinion, there was no difference between the cases. He could 
not discover how a clause in a law declaring that it should expire at 
a particular period, could make the law constitutional. But, the gen- 
tleman did not appear to rely much on that argument : only that it 
gave him an opportunity of returning again to his favorite theme, a 
description of French cruelties. But, said the gentleman, the admis- 
sion of aliens in a country, was a matter of favor, and not of right. 
But, Mr. Allen averred, that the admission of alien friends into a 
country was not a matter of favor ; and even if it were, when they 
were in a country, they were entitled to certain rights, which he enu- 
merated, and which, he said, were derived to them from the laws of 
nature, nations and humanity. The gentleman admitted that an alien 
could not be deprived of life or property without a trial, and that by 
jury. If so, surely they should not be deprived of their liberty with- 
out trial, and that too by jury. But, perhaps, in these modern days, 
life and property only are to be held sacred, while liberty is to be ex- 
posed to the whim or caprice of a single man. If, indeed, this be 
the case, and liberty is considered of less value than property, then 
the argument of the gentleman should have some weight. But, we 
are taught by the constitution to rank liberty next to life. If, there- 
fore, an alien cannot be deprived of his property without trial by 
jury, he certainly should not be deprived of his liberty without the 
same kind of trial. On that account, then, he said, the law was ap- 
parently unconstitutional. But suppose, he said, it was absolutely 
necessary to provide by law for sending aliens out of this country, 
who had the power to do so ? Congress or the states 1 He declared 
that the states had. He read the first clause of the ninth section re- 
specting the migration of persons prior to the year 1808, as proof of 
the assertion. But even if congress had such a power, they had no 
right to vest it in the president for reasons that had already been given, 
and that were too apparent not to be understood. He then proceeded 
to point out the danger of placing too much power in the hands of the 
executive. He stated instances of the unhappy effects proceeding 



105 

from it in Britain ; and was afraid we had much danger to apprehend 
from a desire in congress to increase executive power. This law, vest- 
ing in the president such enormous powers, the gentleman from Prince 
George observed, was made for the purpose of getting rid of two in- 
dividuals, and as they had sneaked out of the country, there was no 
farther necessity for the law. To what extremity, said Mr. Allen, 
must the United States have been reduced. How must they be de- 
graded,' when we are informed that it was necessary to make the pre- 
sident absolute tyrant over perhaps a million of people, to get rid of 
two men. 

But it was urged as an objection to the adoption of the resolutions 
under consideration, that the people were the proper tribunal to de- 
cide upon the constitutionality of the laws, and that they would shortly 
decide the question at the next election. Mr. Allen contended, that 
was not a proper mode for the decision of such a question, for that 
the people often voted from personal or local attachments ; and that 
they were not always apprised of the opinions of the different candi- 
dates; and he instanced his own district as proof of the latter asser- 
tion. But, he said, if this was a proper mode of deciding this ques- 
tion, he believed there was no doubt how the people would determine : 
And this house, by the re-election of a senator of the United States 
the other day, had already decided the question. Mr. Allen then con- 
cluded by making some general observations on the dangerous conse- 
quences of deriving powers from implication ; and said, that he at 
that moment experienced too much bodily pain to be able to proceed 
further. 

On motion of Mr. Magill, the committee then rose, the chairman 
reported progress, asked, and had leave to sit again. 



IN THE HOUSE OF DELEGATES, 

Monday, December 17, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Brackenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

Mr. BARBOUR arose, and observed, that being a young man, he 
did not intend to have troubled the committee with any remarks upon* 
the subject under discussion, but the solicitude he experienced had im- 
pelled him forward. He observed, that the moment on which he 
arose, might be called the first of his political existence, and yet in 
that monent he was called upon to decide a question, in which, not 
only his own fate as a politician, but the welfare of his country 
was materially involved. Mr. Barbour asked, what must be the sen- 
sations of a young man the first instant he stepped on the theatre of 
public life, to be called on to act a part, in which such important con- 
14 



106 

sequences are implicated 1 He observed, he experienced those sensa- 
tions to an eminent degree. But having formed a rule, by which he 
meant to be governed in his political career, which was, to pursue the 
line of conduct his judgment dictated as the most proper, he would 
announce to the committee, and through the committee to the world, 
the motives which actuated him to give the vote he was about to pro- 
nounce, which would be in favor of the adoption of the resolutions. 
He observed, it had been remarked by every gentleman, whether pro 
or con, that the event of the present discussion was important. He 
begged leave to add his testimony likewise to the importance of the 
subject. And he believed he should not use language too strong, was 
he to assert, that in the proceedings of this legislature might be read 
the destinies of America : for issue was joined between monarchical 
principles on the one hand, and republican- on the other; and they 
were the grand inquest who were to determine the controversy. For 
should so important a state as Virginia sanction the measures com- 
plained of in the resolutions, (which she would do if the resolu- 
tions should be rejected,) it would become a step-stone to farther 
usurpation, until those great rights, which are guaranteed by nature 
and the constitution, will be destroyed one by one, and a monarchy 
erected upon the ruins thereof. But on the contrary, if she discoun- 
tenanced those measures, (as she would do by the adoption of the 
resolutions,) and could obtain the co-operation of the sister states, it 
might overawe tyranny, for tyranny in embryo was timid. He asked, 
could it be necessary, to conjure the members of the committee to be 
tremulously alive to the importance of the subject, and viewing it free 
from prepossessions, should give that opinion, which would redound 
most to their own fame and. eventuate in the welfare of their country. 
He then read the resolutions and observed, the gentleman from Prince 
George had remarked, that those resolutions invited the people to in- 
surrection and to arms. But Mr. Barbour said, if he could conceive 
that the consequence foretold would grow out of the measure, he 
Would become its bitterest enemy, for he deprecated intestine commo- 
tion, civil war and bloodshed, as the most direful evils which could 
befal a country, except slavery. A resort to arms was the last appeal 
of an oppressed, an injured nation, and was never made but when 
public servants converted themselves by usurpation into masters, and 
destroyed rights once participated ; and then, it was justifiable. But 
he observed, the idea of that same gentleman was in concert, as 
would appear by reference to a leading feature in the resolutions, 
which was, their being addressed not to the people, but to the sister 
states ; praying in a pacific way their co-operation in arresting the 
tendency and effect of unconstitutional laws. He observed, it had 
been said by some gentlemen that they admitted the unconstitutionality 
of the laws, and yet they would vote against the resolutions, for that 
the subject exclusively belonged to the people, and if their servants 
had violated their trust, they ought to substitute others. In answer 
to this, Mr. Barbour observed, that doctrine like this, was pregnant 
with every mischief. For once admit, said he, that the states have 
no check, no constitutional barrier against the encroachment of the 
general government, we should thereby lessen that weight to which 



107 

the state governments are entitled in the political machine, which in 
America is a complex one. We should thereby destroy those chec ks 
and balances, which are the sine qua non of their mutual existence 
and welfare. And the consequence then would be, that instead of 
harmony and symmetry which has hitherto prevailed, chaos, confu- 
sion, and all the evils incident to that situation, would be the inevita- 
ble result. In theory this doctrine is alarming, but fortunately for the 
liberties of America, when it comes to be tried by the rules of reason 
and sound argument, it is found monstrous and absurd, and therefore 
its advocates must be few. He observed, that he would undertake to 
demonstrate that, although the people possessed the right of exclud- 
ing those who advocated the obnoxious measures, and he hoped would 
exercise the right, yet the state legislatures not only had a concurrent 
right, but was equally bound to exercise that right. He asked, who 
were the parties that formed the compact ? Were they not the peo- 
ple and the states? If it had been formed exclusively by the people, 
he supposed a majority of the people would have been sufficient to 
have confirmed the compact. But what was the fact? Did not the 
constitution require, that the consent of nine of the states shall be an 
indispensable preliminary to its adoption? Again, did it not permit 
three- fourths of the legislatures to alter the constitution, without the 
intervention of the people ? And cannot the states admit new parties 
to the compact, to wit: by the erection of new states? Again, are 
not the state legislatures to the senate, what the people are to the 
representatives ? And if the latter possess the power of censure and 
discharge (which as yet no gentleman would deny,) must it not follow 
by a parity of reasoning, that the former possess the same power rela- 
tive to the body elected by themselves? Again, the president is 
elected by electors, who represent the states as well as the people ; for 
the number of electors are not in proportion to the number of the 
people alone, but the states as well as the people : for example, the 
state of Delaware has three electors, when it is entitled to but one re* 
presentative ; whereas Virginia has only twenty-one electors when 
she is entitled to nineteen representatives. It must follow, then as 
an incontrovertible deduction, that the states are parties to the com- 
pact, and being parties, if the compact was violated (as it was vio- 
lated) the states have the" right and ought to exercise it, to de- 
clare that those proceedings, which are an infringement upon the 
constitution, are not binding. The state legislatures being the imme- 
diate representatives of the people, and consequently the immediate 
guardians of their rights, should sound the tocsin of alarm at the ap- 
proach of danger, and should be the arm of the people to repel every 
invasion. If, said he, the alien and sedition laws are unconstitutional, 
they are not law, and of course of no force. For what are the neces- 
sary ingredients to the constitution and the force of a law ? It was 
not only essential they should receive the sanction of the constituted 
authorities, but the act itself must be in unison with the consti- 
tution ; for, if an agent should transcend his limited authorities, 
he would be guilty of usurpation; and all usurpation being founded 
in wrong, whatever has that only for its support must be void. This 
being the case, the legislature would be guilty of misprision of trea- 



108 

son against the liberties of their constituents if they did not denounce 
the violations offered to the constitution through the medium of the 
alien and sedition laws. He observed, it remained for him to show, 
that the laws alluded to, were unconstitutional. The worthy gentle- 
man from Caroline having proven, in a clear and perspicuous manner, 
the unconstitutionality of the sedition law, and delineated, in masterly 
and eloquent language, the consequences of that act, which is entitled 
to the infamous pre-eminence in the scale of guilt, and as no gentle- 
man had undertaken its defence, Mr. Barbour said, that his remarks 
would be confined to the. alien law alone. And, in order to ascertain 
whether this law was constitutional or not, reference must be had to 
the nature of the constitution. The government must be either limited 
or unlimited. If the latter, it was omnipotent, like the parliament of 
Great Britain, and was adequate to the purpose of passing any law, 
however impolitic, absurd or dangerous it might be to the liberties of 
the people. But, if it were limited, (which was a principle he sup- 
posed so clear, that to consume the time of the committee in proving 
it, would be a supererogation,) it would remain then to be enquired, 
whether in the limited power granted, a power be given to pass a law 
like the one now under discussion, or not. He observed, that to com- 
prehend the nature of the constitution of the general government, it 
might not be unimportant to recur to the political situation of America, 
prior to the adoption of the federal government. In 1776, the thirteen 
United States, then the colonies of America, after having been lace- 
rated to the midriff by the vulture fangs of British-persecution, threw 
off their colonial subjugation, and took a stand amongst the nations of 
the earth. At this time, there were thirteen independent sovereign- 
ties tied together by the feeble bands of the articles of confederation. 
So long as the pressure of external danger was felt, so long the bond 
of union was found sufficiently strong. So long as all jealousies and 
rivalships were sacrificed on the altar of public good, the defects of 
that system were, in some measure, concealed. But, so soon as the 
pressure of foreign invasion was removed, so soon it was discovered 
that the system of union created by the confederation was inadequate 
to the sublime purposes for which it was intended. The people of 
America saw and deplored the situation with which they were me- 
naced j and the Virginia legislature, sensible'of the jeopardy to which 
their well earned liberties were exposed, were the first to recommend 
a resolution in the compact by which the states were connected, not- 
withstanding the senseless yell and malicious calumnies with which 
certain hireling papers to the east teem, of a disposition in this state 
to shake off the union. Influenced by this spirit, the convention met 
in the year 1786, in Annapolis, but broke up without doing any thing 
effectual. In the year 1787, the convention which met in Philadel- 
phia gave birth to the federal constitution. The object of the general 
government, ex vi termini, must be for general purposes; and the 
powers necessary to carry those purposes into effect, were expressly 
defined ; and it was the sense of the American people, cotemporane- 
ous with the adoption of the general government, when the attributes 
and qualities of that government were best understood, that all powers 
not granted were retained. As an evidence of which, let reference 



109 

be had, he said, to the twelfth amendment of the federal constitution, 
which expressly declares, that all powers not granted to the general 
government, were retained to the states, or. the people, respectively. 
It was then urged, (with propriety too, as the sequel has evinced,) that 
the federal constitution was defective, in consequence of its wanting 
a bill of rights. It was answered by the advocates of the constitu- 
tion, (amongst whom was Mr. Lee of Westmoreland, who now dis- 
played great zeal in support of administration, and consequently, 
amongst the friends of administration, should have some weight,) that 
the constitution was better without, than with a bill of rights ; for, if 
there had been, (Mr. Lee observed) an enumeration of particular 
rights with the friends to forced construction, there would have been 
a claim, as residuary legatee, to all rights not expressly retained ; but 
in the present government, there were only particular powers granted, 
and consequently, all powers not granted, are retained to the states, or 
the people, respectively : a doctrine which he (Mr. Barbour) observed 
before, had been recognized in the twelfth amendment to the consti- 
tution. Mr. Barbour then observed, that he having shown that the 
government could exercise no power but what was specifically enu- 
merated, it behoved the authors or supporters of the law to show that 
the power of making a law like the one which was now the subject of 
discussion, was designated in the list of specific powers. If they 
could not show it, it must follow, it was an usurpation of power not 
warranted by the constitution. To ascertain the truth upon this 
subject, which in argument was desirable, let reference be had, he 
said, to the section which enumerates the powers that congress can 
legally exercise, (being the eighth section of the first article.) Any 
power which congress should exercise, not warranted by that char- 
ter, would be an usurpation upon the rights of the states, or the 
people; and in proportion to the extent of the usurpation, should 
be the execration of every friend to republican government and the 
liberties of the people. It would be discovered, when reference 
was had to the section of the constitution alluded to above, that no 
power to make an alien law is granted. When gentlemen are called 
upon to justify the assumption of power, they desert the ground of the 
law being justifiable agreeable to the letter of the constitution, and 
take refuge behind the sanctuary of implication. Mr. Barbour then 
described the danger of implied power, in a warm and animated man- 
ner. He begged the committee to be alive to the mischief with which 
this doctrine was teeming. If, said he, we once abandon the high 
road which the wisdom of our ancestors has established, and in which 
the constituted authorities were directed to walk ; if we once abandon 
that palladium of civil liberty, our rights will be immediately gone. 
No, said he, let us, if our servants turn either to the right or to the 
left, smite them as of old was Balaam's ass, so that they turn not away 
from the path to which, if we mean to keep our liberties, they should 
adhere with undeviating regularity. Promulge it once, said he, to the 
world, or rather to congress, that they have a right to exercise powers 
by implication, and it requires not the aid of prophecy to foretell, if 
we may judge of the future by the past, that those great and inestima- 
ble rights which flow from nature, and are the gift of nature's God, 



110 

will be assassinated by the rude and unfeeling hand of ferocious des- 
potism; That body will not only pass alien and sedition laws, which 
they have had the audacity to pass in the tenth year of the constitu- 
tion, but will go on to increase the already black catalogue of crimes, 
new fangled, and existing only in the brain of suspicion and political 
villainy, till some of the best patriots are sacrificed, and the purest 
blood of which America boasts streams. The friends of liberty will 
be sacrificed, as so many obstacles to their ambitious designs, and des- 
potism, covered with the gore of patriots, will stalk with impunity 
amongst us. But, Mr. Barbour said, he had determined to pursue 
the gentleman from Prince George through all the meanders and 
twistings of his argument, and expose its fallacy and danger ; that 
there should be no ground upon which the supporters of this law 
should find rest : like the dove of old, they should be compelled to 
take refuge in the ark, which by the resolutions was prepared for their 
reception. For this reason, for the sake of argument, but for that 
only, (God forbid it should be for any thing else,) he would admit the 
principle that congress might legislate by implication, yet it could 
have no power of the kind which appears to have been exercised in 
making the alien law. But before he went into that subject, it was 
necessary he should take notice of some miscellaneous remarks which 
had fallen from the gentleman from Prince George. That gentleman 
had observed that congress had passed the law, and that we should 
hesitate before we declared it unconstitutional ; for if it was uncon- 
stitutional, the people ought to resort to arms. In answer to this, 
Mr. Barbour observed, that the circumstance of congress having 
passed it, if it was intrinsically unconstitutional, did not render the 
law less so ; and although he had a high respect for some of the mem- 
bers of congress in both houses, on account of their talents and in- 
tegrity, yet some of the warmest advocates of this law and executive 
measures, were suspicious characters from their situation in life, which 
was so desperate as not to be endangered, but on the contrary they 
might try to be bettered by revolution and convulsion. Political pro- 
fligacy in a republican government sooner or later will meet its fate, 
the execration of an injured people; but by a change, the Judases of 
American liberty will aspire to the acme of opulence in the sunshine 
of monarchy, the most genial climate for the growth of every thing 
which is abhorrent to republican simplicity and virtue. But, he said, 
if he had the highest estimation both for their virtue and wisdom, he 
should exercise his own judgment, with which he had been blessed by 
the God of nature, and if that condemned it, he should not hesitate 
to declare in strong terms his disapprobation. He trusted, he said, 
that the American people were not prepared for unconditional sub- 
mission and non-resistance. A doctrine like this would have disgraced 
the last century, and was fit only for the miserable regions of the east, 
where io-norance, superstition and despotism their sad dominion keep. 
He trusted that the American people did not intend to attach to ser- 
vants the attribute of infallibility : if not, the adoption of the law un- 
der discussion, by congress, would have no weight upon the mind of 
the committee. The gentleman urged that we should hesitate, before a 
declaration was made that the law was unconstitutional. Mr. Barbour 



Ill 

asked, what had been the conduct of the committee ? Had they rushed 
precipitately into a determination? On the contrary, had not the sub- 
ject been discussed for several days ; and would it not continue to be 
discussed for several days more? Had not every gentleman an oppor- 
tunity of delivering his ideas upon the subject? And had not a depth 
of judgment and a brilliancy of talent been displayed in the discussion, 
which would do honor to any deliberative body? In short, had not the 
subject been treated in a manner suited to its importance ? What more 
then could be asked? The gentleman from Prince George was for the 
people's rising en masse, if the law was unconstitutional. For his part, 
Mr. Barbour said, he was for using no violence. It was the peculiar 
blessing of the American people to have redress within their reach, by 
constitutional and peaceful means. He was for giving congress an, 
opportunity of repealing those obnoxious laws complained of in the 
resolutions ; and thereby effacing from the American character a stain, 
which, if not soon wiped off, would become indelible. The gentle- 
man from Prince George had further said, that all the other states in 
the union had met and adjourned, and tacitly acquiesced in the mea- 
sures which had been pursued by the general government. The gen- 
tleman was incorrect in point of fact. The state of Kentucky had, 
in language as bold as could be used, expressed their execration of 
some of the leading measures of the general government adopted at 
their last session ; but upon none more particularly than upon the laws 
complained of in the resolutions. The state of Tennessee was in 
such a situation, as to require or authorize the governor to convene 
an extra session. About what could it be, if it was not the uneasi- 
ness experienced by the people of that state at the usurpation of the 
general government ? In respect to the other states being not adverse, 
he would not contradict the gentleman. But what weight would this 
remark have upon the committee ? Was the conduct of the other 
states to be the criterion whereby to govern this state? He trusted 
not. He hoped, that so long as this state kept its independence, it 
would think and act for itself. Virginia had been always forward in 
repelling usurpation of every kind ; and he trusted she never would 
forfeit the reputation she had acquired ; but always would be the 
champion of the rights and liberties of America. But, he said, hav- 
ing answered the desultory remarks of the gentleman from Prince 
George, he would return to the doctrine of implication. That gen- 
tleman read the preamble to the federal constitution, to prove that, as 
the liberty and general welfare of the whole were the object of the 
constitution, congress had a right to do any thing which might be ne- 
cessary, in their opinion, to effect that purpose. The inference, Mr. 
Barbour observed, which had been deduced, was by no means tena- 
ble. To assert that the preamble to the constitution should alter or 
subvert the constitution, or that the preamble gave powers not given 
in the constitution, was in theory such a monstrous solecism, and so 
much opposed to every principle of construction, that he did suppose 
it would be subscribed to but by few. The preamble, to be sure, ex- 
plains the end of the constitution. It was to secure the liberties and 
welfare of the American people; (but upon what terms.) Why, upon 
the terms designated in the constitution. The people of America and 



112 

the states knew that the powers conceded to the general government 
by the federal constitution, were adequate to the ends contemplated. 
Then to pretend to assert that, although those powers, which the states 
and people designated as those only, which should be exercised, were 
not the only powers that were granted, was a calumny against the 
framers of the constitution ; for they must have intended to ensnare 
the people. For what mind could hesitate to pronounce, that the ob- 
ject of enumerating the powers must have been to fix barriers against 
the exercise of other powers. And Mr. Barbour demanded to know, 
what was the use of a specific enumeration of powers, if it was in- 
tended to invest the general government with sweeping powers? For 
what could be more awkward or ridiculous, than to see the wisdom of 
America defining the particular powers, which its government might 
legally and constitutionally act upon, and in the conclusion, in invest- 
ing them with general powers, which from the expression must have 
included all those specific powers, which had been previously granted. 
Mr. Barbour then referred to« Publius, 2d vol. pages 46, 7, 8, as an 
author, who had treated this subject very fully and ably. The gen- 
tleman from Prince George had said, that the last clause of the 8th 
section of the 1st article, commonly called the sweeping clause, the 
substance of which is, " That congress shall have power to pass all 
laws, which shall be necessary to the carrying into effect the forego- 
ing powers," would justify congress in making the laws complained 
of. Mr. Barbour asked, what was the object of that clause? It was 
not to create new powers, but to complete the other powers before 
granted. This clause was indispensable ; without it the constitution 
would have been a dead letter. For if congress possessed not the 
power of making laws to carry into effect the powers specifically enu- 
merated, the powers granted would have been useless; since to pos- 
sess rights which cannot be carried into effect, was just the same as 
if there were no rights. But no other construction could attach ; for 
that clause speaks only of those powers which before had been granted. 
And if no power relative to aliens had been granted, this clause could 
have no possible effect, which he hoped he had sufficiently demonstra- 
ted. Mr. Barbour said that the gentleman from Prince George had 
relied upon the fourth section of the fourth article of the constitu- 
tion, by which congress guarantees to each state a republican form of 
government, and binds itself to protect each state from invasion, &,c. 
as one out of which the implied power of making alien Jaws grew. 
For he asked how could the general government protect from inva- 
sion, without the power of passing a law like the alien ; and that it 
was indispensable the general government should possess the power of 
expelling aliens : for, if they had not the power, the state of Virginia 
might admit Buonaparte's army, with him at their head, (if he should 
ever escape from the Nile.) If, said Mr. Barbour, no other reason 
could be assigned in favor of the alien law, than an idea so wild as 
the danger of admitting Buonaparte and his army, its supporters must 
be in pitiful distress. To anticipate danger of this kind, was to at- 
tach to this state not only criminality, and that too of the blackest 
kind, but stupidity bordering on idiocy, and to set at defiance the uni- 
form experience of mankind. For was it ever yet known that a na- 



113 

tion participating the blessings of liberty and peace, invited into its 
bosom a powerful foe, by which those invaluable blessings might be 
rifled. An idea of this kind was the child of a mind labouring to 
but little purpose to find some justification for the opinions it advances. 
But who could have supposed that the section alluded to, which had 
for its object only imposing an obligation, should by some be converted 
into a source of power ? What, Mr. Barbour asked, was the object 
of that section? It was to impose on congress the duty of defending 
each state from invasion. Congress, in the eighth section, had the 
power of declaring war; yet, without this section, congress was not 
bound to exercise this power ; and was it not for this section, congress 
might have seen a state invaded, and yet by the letter of the constitu- 
tion, would not have been bound to have defended it from invasion, 
but might have left her to her own resources. To guard against this 
inconvenience was this section inserted; yet out of this the commit- 
tee were told new powers are derived to the general government. 
Mr. Barbour observed, it appeared to him a bold and unjustifiable as- 
sertion to say that the expulsion of alien friends was necessary to pre- 
vent invasion. For his part, his small intellectual faculties could not 
perceive the connection. He could readily perceive the necessity of 
expelling alien enemies; a right which congress possessed, and upon 
which they had acted ; but that the expulsion of a friend was neces- 
sary to the prevention of invasion, created in his mind a confusion of 
ideas. It was asked by the gentleman from Prince George, by what 
authority did congress exercise control over foreign intercourse, if 
it was not by implication. Mr. Barbour answered, that the power 
was granted, he thought, by the third clause of the eighth section of 
the first article, the second clause of the second section, and the third 
section of the second article of the federal constitution. By the first, 
congress has power to regulate commerce with foreign nations. By 
the second, the president, by and with the advice and consent of the 
senate, may make treaties, and shall likewise appoint ambassadors and 
other public ministers and consuls. And by the last, the president is 
vested with the power of receiving ambassadors and other public mi- 
nisters : from which it is apparent, that without the aid of implication, 
the general government possesses the power of regulating foreign in- 
tercourse. It was asked too by the same gentleman, by what power 
did congress erect forts, if it was not by implication 1 Mr. Barbour 
answered, by the last clause but one of the eighth section of the first 
article there was this language : " Congress shall have power to exer- 
cise exclusive legislation in all cases whatsoever over such district, 
&c. :" " And to exercise like authority over all places purchased, by 
the consent of the legislature of the state in which the same shall be, 
for the erection of forts, magazines, &c." Mr. Barbour concluded 
upon this point, by observing that surely the gentleman had not read 
the constitution, for if he had he would not have propounded the 
question, when he must have known the answer would recoil upon 
him. It was asked too by the gentleman from Prince George, if con- 
gress possessed not the power to make the law now under discussion, 
by what authority did they make a law relative to alien enemies. Mr. 
Barbour answered he was happy he was able to instruct the gen- 
15 



114 

tleman upon the subject of the constitution, which he (Mr. Tay- 
lor,) had not read, or if he had, it was in a cursory and inattentive 
manner. He referred the gentleman from Prince George to the ele- 
venth clause of the eighth section of article the first. By that, con- 
gress had the power of declaring war. So soon, then, as war shall 
be declared, by the law of nations, alien enemies become prisoners 
of war ; and being prisoners of war, and congress having the sole 
power of declaring war, congress had a right to say what should 
be done with the prisoners, whose destiny congress alone could de- 
cide. Again, the power of declaring war was the genus. The pri- 
soners, which shall have been made under that declaration, might be 
called a species. Now, as the genus has been granted, the species, 
which is subordinate to the genus, has been granted likewise; it 
being an axiom in reason, that the lesser is always included in the 
greater. To deny the truth of this position, would be as absurd as to 
say, when A, has tranferred to B. a parcel of land, that the house or 
the wood upon the land are not granted likewise. Or, when a transfer 
in fee simple is made, that the life estate is not given also. But it had 
been said, that Virginia has passed a similar law, and therefore, con- 
gress must have the right. Doctrine like this should be a warning to 
the Virginia legislature, not to deviate from the principles of liberty, 
or the spirit of its constitution, lest it should become a pretext to jus- 
tify the worst of purposes in the hands of the general government. 
He observed, that he would not say whether Virginia had done right 
or wrong, in passing the law alluded to, because it was unimportant 
in the present discussion. He observed, the doctrine contended for 
by the gentleman from Prince George, namely, that congress had a 
right to pass the law, because Virginia had done so, deserved the most 
serious attention and unreserved disapprobation of the committee. 
For, if it be true, the government of the United States would become 
an absolute consolidated government, and the sovereignty of the 
states annihilated; from which situation, said Mr. Barbour, good 
Lord deliver us ! But fortunately for us, he said, the position existed 
only in the mind of its author. The state legislature had a right to 
regulate the mode of descents. Agreeable to the doctrine of the 
gentleman from Prince George, congress would have a right to pass 
a similar law. Congress would possess the power of reviving the old 
feudal monarchical principle of primogeniture ; and he had no doubt 
it would be done, because it would be in unison with the other acts 
of the general government. Yet, no sober man, at this time, would 
say that congress has a right to say any thing relative to the rules 
which shall be observed in the descent of estates. It must be clear 
and obvious to every man, not infatuated with political fallacy, that 
there is a line of demarcation drawn between the powers of the state 
and general governments ; and to assert that congress can do, what- 
ever the state can do, is as absurd as to say, the state can do what- 
ever congress can do ; a position he did suppose the advocates of 
congressional omnipotence would be unwilling to admit. Mr. Bar- 
bour asked, in what cases congress had a right to call in the aid of 
implication ? (Having admitted for argument that they on particular 
occasions might resort to that alternative.) For allow the supporters 



115 

of the principle the utmost latitude for which they contend, it could 
only be resorted to when the constitution has given a power that can- 
not be consummated without implication. Wherever the constitution 
was explicit, implication must be excluded. He said he would illus- 
trate his idea by assimilating this case to the doctrine which would 
prevail in the instance of presumptive and positive evidence. Where 
positive evidence from the nature of the case cannot be procured, 
presumptive evidence is admissible, .but where positive evidence can 
be procured, presumptive evidence is inadmissible. The constitution 
too, in the ninth section of the first article, is expressly in point. It 
is to this effect, " the migration or importation of such persons as any 
of the states now existing shall think proper to admit, shall not be 
prohibited by the congress prior to the year 1808." This then ex- 
plicitly declaring that congress shall not inhibit the migration of 
aliens, if the state should think proper to admit them, must unques- 
tionably exclude the idea of implication, and consequently the deduc- 
tions drawn from that source, (the source itself being corrupt) must 
be fallacious. But it might be answered by a quibbler, that the alien 
law did not prevent the landing of aliens here. But where, Mr. Bar- 
bour asked, was the difference between their being prevented from 
landing, and the very moment they landed being sent off? He begged 
leave to state a similar instance, which would prove this was a dis- 
tinction without a difference ; namely, if a man should suffer another 
to come into his house, and the moment he stepped in, should kick 
him out, would this not be as bad, nay worse than if he had prevented 
him from coming in at all. The liberal mind looked down with pity 
and disdain upon such subterfuges; and hesitated not to declare that 
the alien laws did beyond question violate the constitution of the 
United States in this part thereof. This part of the constitution be- 
ing violated should excite universal alarm ; because to it was attached 
particular inviolability by the fifth article, which declares that in this 
particular the constitution should not be amended prior to the year 
1808. Mr. Barbour said, the gentleman from Prince George having 
exhausted the doctrine of implication, had resorted to that of evpe- 
diency, and contended that although congress had neither express nor 
implied power to pass the law, yet it being expedient, it was correct. 
He said if that doctrine be true, the constitution, instead of being the 
main pillar of American liberties, was but an institution calculated to 
ensnare. By the provisions in the constitution, which t.'ie American 
people supposed as so many guarantees to their liberties, they had 
been trepanned into a fatal apathy, whilst they icdulged themselves 
in what they supposed a well grounded reflection, that the checks in 
the federal government were inviolate. Tney were now as it were 
awakened from the fatal repose into which they had been carried by 
misplaced confidence ; and as the people of Caroline well expressed 
it, this boasted constitution of their own choice, and the rights which 
it secured, are to evaporate in the crucible of legislative expedience. 
He said he felt himself unusually agitated at the bare mentioning of 
such monstrous doctrine. Go, said Mr. Barbour, and read the his- 
toric page : it would there be found that expediency has been the in- 
variable pretext of tyranny : it has been with that engine that the 



110 

liberties of a free people were eternally assailed. If, said he, the 
time should ever come (which God forbid) when that doctrine should 
prevail, we might date it as the sera of the downfall of American 
freedom. From that moment, let the votaries of liberty be shrouded 
in sackcloth, and with ashes upon their head, deplore the departure 
of their protecting genius. And, if from America the genius of 
liberty should ever take her flight, like the vital spirit it would return 
no more to reanimate the body from which it had flown. The gen- 
tleman too, to support the necessity or expediency of the law, resorted 
to the situation of this country as it related to France. This he said 
was the favorite theme : this was a ground he had anticipated : it was 
not new : it had been successfully adopted by the higher orders of 
government. The conduct of France towards this country had been 
echoed by the friends of administration from every part of America, 
and under the momentary delusion created by the dispatches of the 
American envoys, it was hoped that principles of usurpation might be 
pushed. The jealous friends of the constitution and the liberties of 
the people, if they had fortitude to oppose the impulse of the moment, 
and declare that the general government was bent upon the subver- 
sion of republican principles, were branded with the opprobrious epi- 
thets of being disorganizers, French partizans, and enemies to all 
order ; and the president of the United States, confident of success 
from the supposed wisdom of his operations, has condescended to be- 
come the head of the party, and has used language which from its bil- 
lingsgate style, as a man he treated with supercilous contempt; but as 
an American, he would feign shed an obliterating tear, which should 
efface it forever. As coming from the chief magistrate of the union, 
it would inflict an indelible stima upon the American name. 

Mr. Barbour said, he would not pretend to justify the conduct of 
France to this country. It was such as met with his disapprobation. 
It was an event, he said, that would be long deplored, and the conse- 
quences thereof were incalculable ; for it had become the pretext of 
t'nose measures, of which he complained. But, he said he felt indig- 
nant. a t the idea, that domestic usurpation was to be justified upon the 
ground of the maltreatment of a foreign nation ; and that the presi- 
dent of the United States should dare brand the guardians of the 
rights of the people with the offensive name of a faction ; and to use 
his own language, that this faction should be ground into dust and 
ashes. Whoai did Mr. Adams mean to call a faction? A majority 
of the yeomanry of America. For it was a fact not susceptible of 
any doubt, that a Hrge majority of real native Americans were op- 
posed to his election Mid his political opinions; which Mr. Barbour 
said he would denounce *s being hostile to republicanism. For, al- 
though Mr. Adams was elected by a majority of three votes, yet it was 
well known that the majority was produced by artifice and coalition. of 
federal officers, persons deeply concerned in funding and banking 
systems, refugees, foreigners, (whose whole life had been but a life of 
warfare against the principles of free government,) bankrupt specula- 
tors, and to complete the groupe, all those who could profit by change 
and convulsion. Mr. Barbour said he would not be understood to 
pass an indiscriminate censure against all the friends of Mr. Adams ; 



117 

because he believed there were as virtuous and as enlightened charac- 
ters, friends to his election, as were opposed to it. Neither should he 
have made any remarks upon the nature of parties, had not the gaunt- 
let been thrown : from that circumstance he thought himself justifi- 
able in taking it up, and causing it to recoil upon the head of its au- 
thor. He said he supposed he was one of that party, whose fate had 
been anticipated ; but he felt an elevating pride when he was classed 
with the names of Jefferson and Madison; names which to the latest 
time, so long as worth and real patriotism should be respected, would 
cast a shade upon the author of such sentiments. Mr. Barbour said, 
for his part he could not perceive the connection between the conduct 
of France and the conduct of our own government; and although 
the friends of administration had been able by their dexterity in the 
arts of delusion, to gain a momentary advantage ; although the pas- 
sions of the people were excited for the instant, by which reason, the 
noblest inhabitant of the human mind had been dethroned, yet they 
(for the people think generally right,) at last, under the influence of 
truth, when generally disseminated, would regain their reason, un- 
clouded by passion, and at that moment they would spurn from them 
with inexpressible detestation, the authors of their delusion. He hoped 
then that no more would be said of the conduct of France, in justifi- 
cation of alien and sedition laws. But the gentleman from Prince 
George had attempted to alarm the committee into his opinions, by 
delineating the fate of the island of St. Domingo. He told us that 
the fertile plains of that island had been deluged with seas of blood, 
and strewed with mangled carcases and mutilated limbs ; and that if 
the alien law had not passed, by which all dangerous aliens were ex- 
cluded, the same fate might have befallen the southern states. The 
committee were almost taught to tremble at the idea of their houses 
being wrapt in flames; their property a prey to rapine; their lives to 
massacre ; their wives, their daughters and their sisters falling victims 
to the brutal and indiscriminate lust of the negro; and in short every 
thing to misery and ruin. But, Mr. Barbour said, he respected too 
highly the good sense and judgment of the committee, to suppose for 
a moment that attempts of that kind would succeed : he knew they 
would be deemed the meagre, unimportant chink of the moment, that 
would scarcely survive the instant that gave them birth. That gentle- 
man's sensibility was organized only by imaginary evils; it was not 
at leisure to deplore the situation to which the unfortunate aliens, by 
this law, will be reduced. Instead of this class of people moving in 
the elevated sphere of freemen, which they occupied before the adop- 
tion of this law, they will be sunk into the despicable grade of slaves, 
whose destiny was suspended upon the arbitrary nod of one man. Mr. 
Barbour said, the committee were told too of a conspiracy, which had 
for its object a schism in the empire, by which we were to lose the 
western country. Where was the evidence of that? Before he was 
willing to legislate, he said, he must have evidence of the fact, of a 
fact apparently so incredible, and so derogatory to the character of 
his country. He believed the western country, particularly Kentucky, 
was inhabited by as virtuous and as patriotic characters as the world 
ever produced : men who possessed that genuine and fervent regard 



118 

for the cause of liberty that goes to elevate human nature a grade in 
the scale of animated nature, from which they look down with ineffa- 
ble disdain upon such calumnious charges as those. Conspiracies, 
plots and wild chimeras were always resorted to in justification of ty- 
rannic measures. The popular pretext of public good was the auxili- 
ary called in to palliate measures pregnant with public evil. And too 
frequently under the mask of a zeal for the welfare of the common- 
wealth, were concealed designs which would eventuate in the destruc- 
tion of the liberties of the people. But they had been told by the 
gentleman from Prince George, that the law was made for two charac- 
ters, to wit, Talleyrand and Volney ; and that those characters had in 
consequence of the same, sneaked off. Independent of the absurdity 
of the principle, namely, the making a general law to suit a particu- 
lar case, the gentleman was most egregiously mistaken in point of 
fact ; for Talleyrand was minister for foreign affairs for France, and 
in France at the time the law passed. How then the law could pass 
to operate on Talleyrand, was to him astonishing. For the character 
of Talleyrand, Mr. Barbour referred to the statement which had been 
made by the gentleman from Prince William. It was sufficient to say, 
that so long as he was supposed to be a martyr to the cause of mo- 
narchy, so long he was bosomed by Mr. Hamilton and his party. As 
to Mr. Volney, he said, the cause of truth and virtue required he should 
speak more at large. He had the pleasure of seeing that meritorious 
character whilst in America, but he knew him better by history than 
from personal acquaintance. He from maturity had been influenced 
by the benevolent desire of ameliorating the condition of mankind by 
illuminating the mind and dispelling superstition. It was for this sub- 
lime purpose we saw him traversing Asia, and sitting in meditative 
silence amidst the ruins of Palmyra, drawing wisdom from experience, 
and developing the causes which contribute to the dissolution of the 
elements of society, and the overthrow of empires, and his capacious 
mind filled with materials of knowledge of the best kind. We saw 
him returning thence to his native country, to publish to the world his 
acquirements, as so many beacons by which those who sit at the head 
of affairs might guide the vessel of state free from those shoals upon 
which they have so frequently shipwrecked. Unfortunately for this 
philosopher, for France, and for the world, Robespierre was at this 
time at the acme of power. Robespierre, the most infamous of man- 
kind, always the enemy to national and genuine liberty, wherever it 
was found, confined this friend to the species in the instrument of des- 
potism, a gloomy jail. By the working of events, a revolution takes 
place in France, by which this sanguinary tyrant met the fate which 
all usurpers merit. Liberty reared its head, and emancipated one of 
its votaries, the enlightened Volney. No sooner was he free from in- 
carceration, than he left once more his native country in pursuit of 
wisdom, and steered to Columbia, once happy land. He explored this 
extensive continent, and returned once more to Europe to analyse 
his knowledge, and to benefit mankind by disseminating the useful 
information which he had acquired. This then was the character 
against whom such unfounded calumnies have been uttered. But un- 
less some evidence was exhibited, he should take the liberty to say that 



119 

they were the offspring of the gentleman's own imagination, begotten 
by the phantom of delusion. 

The gentleman from Prince George observed, that the power of 
making a law like the one under discussion, should belong to con- 
gress ; otherwise, congress would be dependent upon sixteen states. 
This doctrine would perhaps do, if the gentleman was in convention, 
and was ascertaining the powers which should be exercised by the 
congress ; but, the committee were not enquiring what these powers 
should be, but what they were. This reasoning, he made no doubt, 
was urged in convention ; but, the representatives of the large states, 
which were but thinly inhabited, were opposed to the power being con- 
ceded to the general government; and he had shown, in a former part 
of his argument, that the power of restraining the migration of such 
persons as the states should think proper to admit, was expressly in- 
hibited by the constitution. The same gentleman descanted at large 
upon the conduct of France towards the European powers. Subter- 
fuges of this kind evidently demonstrated the distress to which the 
supporters of this law were reduced. For what had the conduct of 
France to do with an abstract inquiry upon the constitutionality of the 
law under discussion. Alternatives of this kind were calculated only 
to inflame the passions at the expense of reason. But since the com- 
mittee had been driven into this subject unavoidably, Mr. Barbour 
said he would examine what had been the conduct of France to the 
European powers. Why, she had done to those powers what those 
powers intended to do to her. She had subdued them, and out of the 
rotten governments, under which those countries groaned, had estab- 
lished four republican governments. The gentleman said, that the 
French intrigues succeeded only in republics, whilst in monarchies 
they had no effect. This was a calumny against republican govern- 
ment, eri masse, and required serious attention and refutation. 

Mr. Barbour asked, where was the republican government, the 
overthrow of which that gentleman so much deplored 1 Was there a 
republican government in Europe? No; there were some which had 
impudently assumed the name ; but, it was a fact, not to be contro- 
verted, that in those countries the governments were completely aris- 
tocratic ; than which, no government could be worse. But perhaps 
'that gentleman had become a disciple of the new philosophy which 
had sprung up under the influence of the present administration, the 
head of which had declared, that aristocracy is the dictate of nature, 
is indispensable to the order of society, and the happiness of mankind, 
(alluding to Mr. Adams's answer to the address of the people of Har- 
rison county.) If this principle were admitted as orthodox, the world 
should lament the ruin of aristocracies; but if it were false, (which 
he believed the greater part of America would not deny,) so far from 
mourning their downfall, it should diffuse general joy. Mr. Barbour 
said he had now pursued the gentleman through all the arguments 
which he had given into on the score of expediency, and trusted he 
had demonstrated their fallacy. He would now call the attention of 
the committee to a contrast he was about to draw between the law and 
the constitution. Let it then for argument sake be admitted that con- 
gress had a power to make a law relative to aliens ; yet might not con- 



120 

gress violate that right : As for example, congress have the power of 
laying a direct tax, yet congress might violate that right in laying a 
tax without reference to the inhabitants of the state upon which the 
tax was to be laid. The alien law, Mr. Barbour said, violated the 
sixth amendment of the constitution, (the substance of which was, 
" that no warrant shall issue, but upon probable cause, and that too 
supported by oath or affirmation,") in this, that the president, without 
probable cause, without an oath, and barely upon suspicion, had a 
right to apprehend the alien, against whom some mercenary informer 
may have lodged a complaint. It likewise violated the seventh amend- 
ment in this ; that by the alien law the president was invested with 
the power of consigning to banishment, without the formality of trial, 
this unfortunate class of people, of which he supposed we had myriads 
amongst us, when by that amendment it is declared, " that no person 
shall be held to answer for a capital or otherwise infamous crime, un- 
less on a presentment or indictment of a grand jury." 

By the eighth amendment it is declared too, that in all criminal 
prosecutions the accused shall enjoy a speedy and public trial by an 
impartial jury of his vicinage; and to be informed of the nature and 
cause of the accusation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining witnesses in his favor ; 
and have the assistance of counsel for his defence. It was only ne- 
cessary to read the alien law, to show the palpable violations of the 
constitution. No oath or affirmation was requisite ; no presentment or 
indictment by a grand jury necessary ; no trial by jury ; his accusa- 
tion, conviction and punishment, were all to be announced by the 
presidential officer in one breath. It was true, there might be a kind 
of mock trial before a tribunal filled with characters selected by the 
president: a tribunal not under the solemnity of oath, not under the 
least responsibility to public opinion, but from the nature of their in- 
stitution, are taught to kiss the hand from whom they receive their 
authority : a tribunal unknown to our constitution ; and in fact, as far 
as it went was an epitome of the star chamber and high commission 
courts. But, Mr. Barbour said, he had been told that the aliens were 
not parties to the compact, and therefore were not entitled to the be- 
nefit of the compact. He contended that by the law of nations, but 
what weighed still more strongly upon his mind, upon principles of 
reason and humanity, they were entitled to the benefit of the rights 
secured under the constitution. The law of nations, Vattel, page 
171, section 135, declares that the sovereign authority of a state has 
no right to prevent the migration of persons into its country without 
a good reason. . As for example, China has a right to refuse the ad- 
mission of aliens, because its country is completely populated, and 
because the admission of aliens would operate an insuperable injury 
to its citizens. But what good reason could America assign for re- 
fusing admittance to strangers, with a country extensive, fertile be- 
yond exception, and uninhabited. Had not the persecuted alien then 
a claim upon us not to be frittered away by the ingenuity of sophistry? 
Mr. Barbour said, having shown that strangers had a claim upon us, 
and that by the laws of nations they have a right to come amongst us, 
he would proceed to prove that when they were in this country, they 



121 

were entitled to the benefit of the law. For this purpose he would 
refer to Vattel's law of nations, page 160-1. It is there said, that the 
law of the land is not only applicable to the particular subjects, or 
citizens of the sovereign authority, but applies to all orders of people 
of every description. It appeared to him a doctrine of the most cruel 
kind, and which he trusted he should never again hear re-echoed from 
these walls, to attempt to narrow the operation of an instrument for 
the purposes of despotism. A benign philosophy would dictate, that 
the constitution should receive a liberal construction, when the wel- 
fare of thousands required it? But Mr. Barbour said, that aliens 
were parties to the compact, so far at least as relates to security 
against oppression. For by coming to this country, they tacitly agree 
to be bound by the constitution and laws thereof. If an alien com- 
mitted an offence, how in ordinary cases, was he tried? As citizens. 
How was he punished ? As citizens. Surely then, as he was to be 
punished by the laws, he should be entitled to their protection. And 
Vattel further mentions, that an injury done a stranger should be 
punished by the sovereign authority, in as exemplary a manner as if 
done to a citizen. 

But it had been said, that the sending off of aliens was no punish- 
ment: it was a kind of preventive justice. Language like this, 
was the offspring of a cold heart and muddy understanding. What ! 
Was it no punishment to banish a fellow man from a country where 
he has invested his all ? W T here he has formed the strongest imagina- 
ble ties? And in which he expected to find an asylum from the fangs 
of despotism? And perhaps to consign him back to the country, 
from the persecuting tyranny of which he might have fled? Let 
those who advocate this doctrine, bring the case home to themselves, 
and enquire if they would not conceive it a punishment to be banished 
from a country which contained their all. Mr. Barbour observed, 
that the alien law had violated the constitution in a very obvious man- 
ner by destroying the main pillar upon which all free governments 
stand, namely, a separation in the three great elements of govern- 
ment. By it, the president was invested with legislative, executive 
and judicial powers, which Montesquieu defines to be the essence of 
despotism. He first gave his assent to the law as president. He then 
legislated in establishing a rule by which the alien is to be tried, and 
every rule was a law. The law itself has established no rule ; has 
pointed out nothing which the alien shall avoid; nor yet prescribed 
any thing which he shall do. The president, in the gloomy, dark and 
inaccessible recesses of his mind, was then to prescribe the rule, and 
make it known only when he intended to punish under the rule ; there 
then he legislated. He then was to judge whether the alien had vio- 
lated his own rule, and if he should conceive or suspect that he had, 
he was then to carry his own sentence into effect. If he had been 
called on to delineate a picture of frightful despotism, Mr. Barbour 
said, he should think he had discharged the task by copying the alien 
law. The president of the United States was invested with the pleas- 
ing and humane power of pardoning. What kind of a figure would 
the president exhibit, when he had accused and condemned the poor 
unfortunate alien, to be applied to for a pardon ? Was it ever yet 
16 

I 



122 

known in a country which had participated freedom, and had pro- 
gressed in jurisprudence, that the same man or set of men had the 
power of condemning and pardoning at the same time 1 The en- 
lightened Montesquieu has observed that it would create a confusion 
of ideas, and the world would be at a loss to know whether the cul- 
prit had been acquitted, or condemned and pardoned. In conse- 
quence of the measures which had been pursued, the executive branch 
of the government had acquired an undue preponderance of power, 
which had derogated from the other branches : the result of which 
was, that instead of their moving in the dignified sphere of planets, 
they had dwindled into the pitiful character of satellites, which played 
around the executive with servile complaisance. And the liberties of 
the American people, which revolve around the constitution as the 
centre of their system, should that be destroyed, would be precipitated 
into ruin likewise. America was destined, he said, to increase the 
already extended catalogue of despotic nations, and we should be 
compelled to admit the melancholy truth, that man is not susceptible 
of self government, but is doomed to be governed (he trembled whilst 
he related it,) by arbitrary, accursed arbitrary sway. But notwith- 
standing all this, we were told, hail Columbia, happy land! That the 
people of America were the happiest in the world ! What then, were 
the people to wait till the pressure of the evil principle was felt? No. 
As an elegant author expressed, they augur misgovernment at a dis- 
tance, and snuff the approach of tyranny in every tainted breeze. 
The political horizon of America, which some years ago shone with 
undiminished lustre, and which attracted the admiration of all the 
world, was now darkened with clouds of domestic usurpation, which 
waited but for some incentive to burst in dreadful violence upon our 
heads. What an august melancholy scene was here! That at the 
conclusion of the eighteenth century, a time which twenty years ago, 
by the sanguine admirers of the rights of mankind, would have been 
anticipated as the birth day of a general jubilee of emancipation, 
when distant nations would have heard and have quickened into pub- 
lic life by the sound, the Virginia legislature was brought to decide 
whether even in America itself, the birth place and cradle of liberty, 
liberty shall be preserved, or whether bound hand and foot as it was, 
it shall be offered up as a sacrifice upon the altar of vice and ambi- 
tion. Mr. Barbour then expressed himself in the following strong 
and animated manner: Legislators of Virginia! The voice of the 
people speaks to you : the eyes of the friends of liberty throughout 
the continent, are upon you : and the friends of mankind throughout 
the world, are waiting in anxious solicitude the result of your delibe- 
ration. The road to immortal honor is open before you: the temple 
of fame is within your reach, and the welfare of your country calls 
eminently upon you. By the adoption of the resolutions you raise a 
rampart against the inroads of usurpation, and your names will be 
wafted down on the stream of time, crowned with laurels, and as they 
pass will be hailed by a grateful posterity with plausive acclamations. 
But if you reject, you give additional weight to the already overgrown 
power of the general government, by which the liberties of the people 
will be subverted ; and in some after time, when our country shall 



123 

consider us, the people pointing you out shall say, there go the authors 
of our misfortunes. 

He then concluded by thanking the committee for the attention 
they had given him. 

On motion, the committee then rose, the chairman reported pro- 
gress, asked and obtained leave for the committee to sit again. 



IN THE HOUSE OF DELEGATES, 

Tuesday, December 18, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Brechenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

Mr. MAGILL said, that he arose with sensations never before 
experienced by him ; that he conceived the peace of the United States 
to be involved in the decision which the committee were about to 
make ; for the question appeared to him to be whether the states should 
remain united under the federal constitution, or that instrument which 
they were bound to support, be declared of no force or eifect ; that in 
delivering his sentiments to the committee, he would address himself 
to the reason of the members, and avoid an appeal to their passions ; 
for if the opinion he advocated could not be supported upon this ground, 
he would not resort to any other. That he had attended to the argu- 
ments of the gentleman from Orange, and those of the gentlemen who 
preceded him on the same side : with their eloquence he was pleased, 
and their talents he admired, but the judgment he had formed upon 
the laws, after the most serious reflection, so far from being shaken, 
had received additional force by the manner in which the debate had 
been conducted. When gentlemen of first rate talents amuse the 
fancy with eloquent harangues, instead of attempting to inform the 
understanding, to him it was evident that they thought their positions 
untenable. He said we are to decide upon the constitutionality of the 
" alien and sedition laws," as they are generally called, and in so doing 
are we not erecting ourselves into a court of justice, particularly so as 
the resolutions declare those laws null and void ; for where is the de- 
partment of the government except the judiciary, that can exercise 
this power. He said that the present assembly was chosen by the 
people for the ordinary purposes of legislation, and he begged to know 
the source from whence their judicial powers even over a law passed 
by themselves, in a case where their jurisdiction was complete, could 
be derived. If, said he, it be admitted that we cannot judicially act 
upon a law passed by this or any other assembly of this common- 
wealth, and that our courts alone can do so, where is that law, point 
out that feature in the federal constitution, that gives to this body the 
power now about to be exercised. He said that the public papers had 



124 

teemed with invectives against congress for passing these laws. Could 
gentlemen say this was a criterion to judge them by. He said, that 
in all the publications he had seen, and the arguments he had heard 
used, the authors had taken for granted what remained to be proved. 
Admit the premises, and the conclusion may fairly be drawn. The 
gentleman from Orange, Mr. Magill said, had observed that the pre- 
sident of the United States was a friend to monarchy, or in favor of a 
monarchical government. Admitting this for argument's sake to be 
correct, what relation, said he, can it have to the subject now under 
consideration ; will it enlighten the mind of a man when he is called 
upon to form an opinion upon an important point, to have his judg- 
ment drawn from that object, by suggesting one foreign and entirely 
unconnected with it. He said, that for his own part, Mr. Adams pos- 
sessed his highest confidence ; that he viewed him as the tried and 
true friend of his country ; that the happiness of his fellow citizens 
was his first object; that he looked up to the virtues and talents of 
Mr. Adams with veneration, and would only add, that his administra- 
tion had in his opinion been pure and uncorrupt. These sentiments, 
though unpopular here, I ever have and will avow, said Mr. Magill, 
so long as the measures heretofore pursued be continued. He then 
contended, that the statement of the gentleman from Prince George, 
respecting the rights of aliens, was correct, and the contrary one of 
the gentleman from Orange, not so, and gave his reasons for this opi- 
nion. He observed, that he meant to be concise in his replies to the 
arguments against the alien law, as the gentleman from Prince George 
had opened that part of the debate, and would in concluding it, notice 
all such as he should omit. He said that he adopted this mode, sup- 
posing that the opening of the sedition act, which had been assigned 
to him, would take up as much time as the house could on that day 
allow him. He then defined as necessary to a perfect knowledge of 
the subject, the powers of the general and state governments. He 
observed, that the only true and natural foundations of society are the 
wants of individuals. He said this rule applied to the states, consi- 
dered as such, at the time this constitution of the United States was 
formed. The insufficiency of the old confederation, said he, evinced 
their wants, and to prevent again experiencing these wants, this con- 
stitution was formed. He observed, that to him the constitution of the 
United States should be thus explained, as giving to the federal go- 
vernment a control over the national affairs ; to the state governments, 
the case of state or local concerns. Upon this definition, and the con- 
stitution taken together, he proceeded to enquire if the alien law had 
violated the constitution in any respect ; and he agreed with the gen- 
tleman from Prince George in his statement respecting aliens, that 
Vattel's doctrine was solid and to be relied upon. He insisted, that 
the safety of a nation could not be secured, without such a power as 
this law gave being deposited somewhere. He agreed with the gen- 
tleman from Spottsylvania, that the dispute with France, if it could be 
avoided, ought not to be introduced ; but how, said he, can this be 
done ? The unjust and infamous conduct of France, should make our 
government careful how its citizens introduce themselves amongst us, 
with their diplomatic skill; and to guard against attempts of that na- 



125 

tion and its citizens, this law perhaps was passed. He then adverted 
to Volney and Talleyrand, of whom the gentleman from Prince George 
had spoken, and said, that that gentleman had not been correctly un- 
derstood by the gentleman from Prince William, and others, when 
they alluded to his remarks upon Talleyrand and Volney. The gen- 
tleman from Spottsylvania had mentioned the independence of the 
state governments at the time of the adoption of the constitution. He 
admitted that to be true, but said the argument was of no weight, un- 
less it could be proved that they were independent now, as their situ- 
ation at that period was the subject. He then made some remarks 
in answer to the gentleman from Brunswick, upon the first clause 
of the ninth section of the constitution, restraining congress from 
prohibiting migration; and he said, the gentleman from Caroline had 
not relied upon that clause, but the gentleman from Orange had. He 
said, that he thought the clause last mentioned, related only to slaves, 
and his reason for thinking so, was founded upon the language used 
in the latter part of the clause, and the whole constitution taken to- 
gether. He then quoted the opinion of Mr. George Nicholas , deli- 
vered at the time of the adoption of the constitution, in effect the 
same as his own. He here read the opinion delivered by Mr. George 
Mason, in the debates of the convention in Virginia, in regard to the 
clause referred to respecting migration and importation extending to 
slaves only. He took this to be the opinion of Mr. Mason, inasmuch 
as his observations, as well as those of others, were confined to that 
description of persons alone. He then mentioned the alien law of 
Virginia, not he said, with a wish that if it were erroneous, it should 
be a precedent, but to show what was the opinion of the legislature of 
this state at that time. They had been told, that the legislature of 
Virginia had a right to pass such a law, and that congress had not. 
He contended on the contrary, from the constitution, that the state 
had a power to pass such a law, only until congress should interfere, 
by passing one upon the subject. He assimilated this to the case of 
citizenship, upon which laws had been passed by the state, that were 
set aside when congress passed a general law, by the force of that 
law. He then said, that the clauses in the constitution of the United 
States, and in the bill of rights of Virginia, securing the trial by jury, 
were couched in general terms, and neither were ever supposed to be 
infringed until the passage of the alien law by congress. The people 
of this state had passed such a law for the same reason, as had in- 
duced congress to pass one, to wit, to insure domestic tranquillity. 
Let me ask, said he, if here we ought not to pause, and not hastily 
condemn a former legislature of our own state. He then proceeded 
to show, that by the suspension of the writ of habeas corpus, (which 
the constitution warranted in a particular case,) the trial by jury was 
taken away even from a citizen. Would not then, he said, the true 
meaning and spirit of the same instrument allow it to be taken away 
from an alien, a person entitled to no absolute rights, and who was no 
party to the compact, in a similar case. He then stated at large, the 
proceedings which took place in the case of the suspension of the 
writ of habeas corpus ; and observed, that a person then charged, must 
remain in prison without a hearing, until the emergency had ceased. 



\S- 



126 

That case then, he said, was in principle the same as the alien law. 
The cause for the suspension of the writ of habeas corpus was tem- 
porary, and when the cause had no longer an existence, the effect 
would also cease. He then contended, that when the alien law had 
passed, there was good cause to apprehend danger from without, and 
from aliens within our territory : to guard against their attempts was 
proper. He said, the gentleman from James City had urged the ne- 
cessity of aliens being informed of the rule of conduct which should 
govern them upon their arrival in America. In reply to this, he, Mr. 
Magitt, would observe, that aliens must know that rule from the law 
of nations, which is a part of the law of every country, and is simply 
this, " interfere not in the governmental affairs of a foreign country, 
and confine your attention to your individual concerns whilst in that 
country." He thought this power given by the law, of removing 
aliens, properly vested in the president. He stated his responsibility, 
and the eminent services rendered by the present president, together 
with his known attachment to his country, as a pledge that he would 
not act cruelly or unjustly. The gentleman from Caroline had argued 
upon the condition upon which the constitution was adopted in Virgi- 
nia, and upon that point he had understood him to say, that the con- 
dition being broken, we were no longer bound by the ratification. 
This, Mr. Magill said, was an alarming doctrine. He then recapitu- 
lated his several arguments, in order, he said, to impress upon them 
what he had attempted to prove, and said, that he would then consi- 
der the sedition law : and here he requested the attention of the com- 
mittee, this law being in its nature particularly important, citizens be- 
ing affected by it. The freedom of the press correctly understood, 
and as it was considered by the framers of the constitution, he con- 
tended was not abridged by the law. He then read the sedition act, 
and said, the passage of this law was opposed in congress by those 
gentlemen who had opposed the defensive measures adopted against a 
foreign nation, and in Virginia it was reprobated on the ground of its 
being unwarranted by the constitution. He asked, is there by this law 
an addition to our penal code, and said, that in his judgment no new of- 
fence was created by it, every thing it forbids being before an offence 
at common law. He said, here it will be proper to enquire, whether 
the doctrines of the common law apply or form the basis of our laws : 
that they do so, he took to be clear and evident ; such was the opinion 
entertained in the Virginia convention. He said, that what the doc- 
trines of the common law were prior to, and at the establishment of the 
constitution of the United States, must then be the rule, and the term 
liberty of the press, as then understood, an important consideration. 
He then read the history of the liberty of the press, as laid down by 
Blackstone, in the 4th volume of his commentaries, and said, this 
then is the history of the term freedom of the press. It was an ex- 
emption from all power over publications, unless previously approved 
by licensers. To show that it did not extend to an exemption from 
legal punishment, according to the principles of the common law, he 
said, let us again return to the same author : " Libels are malicious de- 
famations of any person, and especially a magistrate, made public, by 
either printing, writing, signs or pictures, in order to provoke him to 



127 

wrath." He proceeded to read Blackstone's definition, with the mode 
of proceeding against persons charged with libellous publications. 
The liberty of the press, as he had stated it, he said was essential to 
a free state, and drew the distinction between the liberty and licen- 
tiousness of the press. He said, with this definition of the freedom 
of the press, as it was before them, with Blackstone's rational obser- 
vations in their view, can we for a moment suppose that congress, 
when they concurred in recommending the third article of the amend- 
ments, and the assemblies of the different states, when they ratified 
and approved that article, intended to procure an exemption for wri- 
tings false, scandalous and malicious, from punishments, according to 
the principles of the common law. Doth not the judicial powers of 
the United States expressly extend to controversies, to which the 
United States shall be a party ? Can there be a case, in which the 
United States shall be called a party, if not to those which are offences 
against the United States, their people and government? Was it in- 
tended that the government should be destitute of the means of de- 
fending itself or its members? Have not congress power, "to make 
all laws necessary and proper for carrying into execution the powers 
vested by the constitution in any department of the government of the 
United States?" He said, let us now see what construction hath been 
put upon the twelfth clause of the bill of rights in Virginia, by the 
assembly of that state, for a law by that body is an express declara- 
tion of the opinion it entertains. The twelfth clause is, " That the 
freedom of the press is one of the great bulwarks of liberty, and can 
never be restrained but by despotic governments." The constitution 
of the United States says, in the third article of the amendments, 
'* Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof, or abridging the freedom of 
speech, or of the press, &-c." In substance the language is the same. 
Amongst the laws passed in 1792, is one to be seen in page 219 of 
the Revised Code, entitled, " An act against divulgers of false news;" 
which law enacts, " That whereas," &c. He then read the law. 
The legislature was then of opinion, that divulgers of false news, 
whether printers or others, were not protected by this clause in the 
bill of rights. Are we, he asked, wiser than a former assembly ? This 
law in our Code, upon being compared with the law of congress, will 
be found much more severe than the latter. By the law of congress, 
the accused may give in evidence in his defence, the truth of the mat- 
ter contained in the publication charged against him, &c. But, said 
he, is it known to the people that in a prosecution for a libel in Vir- 
ginia, under the state laws, you can neither plead nor give in evidence 
the truth of the matter contained in the libel. He said, in a civil ac- 
tion, the truth could be pleaded in bar of the suit, and upon proving the 
plea, a verdict would be found for the defendant. He here pointed 
out the mode of proceeding by indictment against a person accused 
and tried under the state law for a libel ; and said here is a mate- 
rial distinction between the two laws. He contended, that the freedom 
of the press was not abridged, no new offence being created. He 
asked, how can the officers of government carry the laws of the union 
into effect, without possessing the confidence of the people. He said, 



128 

what is this law designed to prevent, is it the circulation of false and 
malicious slanders ? And if so, can any man wish to exercise such a 
right, even admitting him to possess it, the bare use of which would 
cover him with infamy. He said a law passed by us is right, but a 
similar law passed by congress, having equal power upon the subject 
matter, is wrong. He repeated his several arguments in order, and 
said that the committee had been so indulgent, that he would now 
pass on to the resolutions offered : And here, he said, it appeared to 
him that the wisdom of man could not devise a more certain mode of 
preventing a repeal of the laws complained of, than that which the 
resolutions pointed out. Are gentlemen serious, he said, in wishing 
a repeal. He said, the moment that the paper under consideration 
was adopted, he should consider as giving birth to a serious and 
alarming contest. He said, are we sincere in our professions of 
friendship to the government of the United States? If so, why 
snatch with avidity an opportunity of resorting to a measure violent in 
its nature, before we have made an attempt, moderate and temperate. 
Would this conduct, he said, be pursued by an individual wishing to 
be reconciled to his friend. He said the resolutions are certainly in- 
correct. The states alone are parties. What, are the people entirely 
excluded ? He contended, that there is not a state in the union that 
hath so unequal a representation in the state legislature as Virginia. 
Are the people of Virginia represented according to numbers? No ! 
It is the name of a county. Two hundred freeholders have the same 
voice in this assembly as one thousand. This statement, he said, the 
committee knew was accurate, and the two counties could be named. 
He then referred to the third amendment to the constitution of the 
United States, which secures the right of petitioning for a redress of 
grievances. The states, he said, could never be injured whilst that 
power existed ; and could he be convinced that the people were ag- 
grieved, he would join in a constitutional moderate way to obtain a 
redress. He said, the Kentucky resolutions, as did ours, declared 
these laws null and void. If they are so, let the proper courts say so. 
He then proceeded to show that the states could not form a coalition ; 
for by the constitution they are prohibited from entering into any con- 
federacy, or making any agreement with each other. In substance, 
he said, this was forming a confederacy. He then read an extract 
from the Federalist, in the writing of which the gentleman from Spott- 
sylvania had said Mr. Madison was concerned. 

He said he thought the laws constitutional, and then enumerated 
the consequences of adopting the resolutions before the committee. 
He enlarged upon this subject, and again entreated the committee to 
pause and seriously to reflect upon the awful question before them, 
for such he really considered it. 

Mr. FOUSHEE arose next, and asked if it would be necessary for 
him to tell the committee that the subject was important, after what 
the gentleman last up had said : " that peace or war was to be the 
consequence." And being so important, he (Mr. Foushee,) thought, 
that they should most seriously consider the matter previous to a de- 
cision on the resolutions before the committee. He then made some 



129 

remarks upon the quotations from the law of nations, used by Mr. 
George K. Taylor and Mr. Magill, to show that sovereignty must re- 
side in every independent nation, and the power consequently attached 
to sovereignty. This doctrine he did not deny, but said, if the states 
individually were sovereign before and at the time of the adoption of 
the constitution, which he contended they then were, and still are, he 
asked could any one lay his finger on that part of the constitution of 
the United States which had taken away their sovereignty in those 
cases embraced by the alien and sedition laws? That the constitution 
was a limited compact, and contained no powers but those granted. 
But the common law and implication had been resorted to by gentle- 
men, in support of a contrary doctrine. By admitting the common 
law and this construction to have force, he said, congress might under 
these,, and the terms general welfare, pass any act whatever : thereby 
setting the constitution at naught, and making it a dead letter ; and 
nothing would be reserved to the states, or to the people. He was 
alarmed, he said, at the method which the gentleman from Prince 
George had adopted, in selecting the alien from the sedition law, in 
his arguments, and confining himself to the former. In doing so, he 
(Mr. Foushee) feared he discovered an intention, under the guise of 
attacking aliens only, who were certainly the most unpopular inhabi- 
tants amongst us, to lay a foundation for inflicting similar injuries in 
future, on such of our citizens as might give offence, and that he 
thought the selection of this law, might keep the danger he appre- 
hended out of general view. Mr. Foushee made several observations 
in answer to Mr. G. K. Taylor, respecting the rights of aliens ; and 
observed, that by the alien law, they were deprived unconstitutionally 
of liberty, which he (Mr. Foushee) contended was one of their rights, 
as well as life and property, to which it was acknowledged they were 
entitled : for the loss of their liberty, however, he said, the gentleman 
from Prince George expressed no pity nor offered any excuse, except 
one, which might be the plea of any tyrant. Mr. Foushee then said, 
he thought and feared, that the alien law was but a step to something 
else, to wit, a precedent under which citizens might in future be '-at- 
tacked. Danger too, he said, had been assigned as the cause of pass- 
ing those laws. That cause he observed, might be raised up at any 
time, by an artful president, who could perhaps previously get such a 
treaty made as to suit his purpose ; and, under the idea of danger, to 
produce a state of preparation, by which his power might be increased, 
and which might become injurious, by the extension of influence 
arising from patronage ; for instance, &,c. What direful acts and ef- 
fects of usurpation, said he, may not ensue under the pretence alone of 
danger? The unconstitutionality of these laws, he observed, had been 
so fully proved, that it would be unnecessary then for him to say any 
thing further on that head ; and that, if there was an act, at which the 
human mind could .revolt, it would be, in his judgment, the denial of 
such unconstitutionality. He then said, that if the doctrine of some 
gentlemen on the floor of congress, and that contended for by a certain 
modest pamphleteer, as lately published, and which some days past had 
been so copiously detailed by the member from Prince George, and 
which he (Mr. Fdushce) had since seen, could be established, he ad- 
17 



130 

mitted the resolutions must be wrong ; but, as he was well satisfied 
such doctrine could not be supported, he thought the resolutions ought 
to receive the sanction of the committee. He mentioned the subject of 
implication again, and dwelt on its direful consequences, many of 
which he particularly enumerated. He then proceeded to answer 
quotations made by gentlemen from certain laws of Virgiuia, particu- 
larly the alien bill, endeavouring as he supposed, to deduce from 
thence power to the general government over aliens. He urged, that 
the latter particularly was a proof that the state, and state only, had 
a right to pass such a law ; and consequently, that congress had not 
•the right. 

But he said, the gentleman from Prince George had urged, that if 
congress had not the power of passing such a law, Virginia might ad- 
mit under the description of aliens, an army of soldiers, for instance, 
Buonaparte and his whole army, (if they could get out of Egypt.) Mr. 
Foushee asked, what idea must that gentleman have of the virtue and 
patriotism of his fellow-citizens, in urging such an argument. He 
said, it might justly be called, in the gentleman's own words, a mon- 
strous idea. He then asked, where would those doctrines contended 
for by gentlemen in opposition to the resolutions, leave us? Would it 
not be in a mass of consolidation ? Could not freemen, he said, assert 
their rights, without being charged with an intention or wish of dis- 
solving the government of the United States? He then stated the 
observations of several gentlemen, in regard to the consequences of 
opposition, as they termed it. That he differed, however, from them 
in regard to the consequences they apprehended, to wit, an invitation 
of foreign invasion, &>c. ; and he contended strongly for the right of 
free communication and consultation. He observed, that the gentle- 
man from Prince George had said, that these acts of congress having 
been passed by a majority of that body, the members of which had 
taken an oath to support the constitution of the United States, could 
we suppose they were unmindful of it. The members of this assem- 
bly, Mr. Foushee said, had taken the same oath, in addition to other 
obligations. That they must therefore pursue their duty, in discharge 
of their solemn obligations to this state and the United States, with- 
out regard to the conduct of other people, although they may have 
acted also under oath. He then recapitulated various arguments of 
those who approved the resolutions, and observed, it had been said 
by the member from Prince George, that this law, (meaning the alien 
law,) although passed, would affect very few comparatively, indeed it 
would be almost as one man only. In this light, he (Mr. Foushee) 
considered it so much the more to be dreaded, as an exertion to its 
repeal might not be sufficiently made, and thus a precedent be estab- 
lished. Small beginnings he said, often produced great ends and re- 
quired therefore to be more narrowly watched. He then made a com- 
parison between the structure of the constitution and the universe. 
The latter he represented to be a system composed of atoms. If, 
said he, it were once to be ascertained that we had a power to destroy 
or annihilate one atom, it would soon be seen that we had a pOwer to 
destroy more atoms ; and thereby we should establish a principle, 
which might go to the total destruction of the universe. The same 



131 

consequences as to the right of power over the constitution, he said, 
might ensue, for the power over such was Hoiked. Danger too, he 
said, had been repeatedly assigned as' a cause for those Jaws. He 
again asked, what would be the consequence of subscribing implicitly 
to that doctrine? The principles of such a measure he repeated, 
would be to establish in a designing man, or set of men, at the head 
of the government, all power , which might be continued, even when 
the danger spoken of no longer existed. Precedent, he again said, 
would be thus founded and resorted to : and be urged upon us on 
every occasion, by saying, the same thing has been done before. But 
if danger alone, added he, had been the cause of passing those laws, 
and they could be justified* even on that score, that danger, he said, 
was now nearly over, or greatly lessened. He then referred to histo- 
rical facts to prove the force of his remarks. These, he said, were 
worthy of being attended to. He again declared himself in favor of 
the resolutions, especially the first. After which he observed, that he 
had confined his observations generally to the alien law, as he had 
understood the gentleman from Prince George to say, early in the de- 
bate, that the arguments on the sedition law would not be gone into, 
until those on the alien law had been urged and decided on. However, 
he said, he considered the sedition law of much the greater consequence 
of the two, as the evils were by that law, in his judgment, much aggra- 
vated ; and that all the arguments urged against the alien law, applied 
with accumulated force against the sedition law ; and that he could as 
yet only account for the selection of the alien law in argument, as being 
the most distant from, and least to be felt by, the citizens at large. 
He then proceeded to state the purport of the sedition law, the con- 
struction which had been given to it, and the consequences resulting 
from its operation. And although he admitted, that speaking might 
not be expressly enumerated, yet he said the free communication of 
opinion was prevented, and particularly in the mode of writing, print- 
ing, &<c. He then stated the beneficial effects resulting from a free 
communication of sentiment, and the greater benefits still flowing, 
particularly from the freedom of the press ; by means of which, know- 
ledge was most extensively diffused. He made several observations in 
favor of the manly language of the resolutions, particularly the first, 
as holding out our express determination to resist usurpation by every 
constitutional mode, as well as invasion ; and which he thought would 
be the most effectual means of curing the present evil, as well as pre- 
venting similar attempts in future. He then made a short recapitula- 
tion of the unconstitutionality and inexpediency of those laws, and 
observed, that injustice and deception was particularly evident, in his 
judgment, on the face of the sedition law, to wit : four specified acts, 
" writing, printing, uttering and publishing," independent of other 
prohibitions, were made punishable. That it had been urged, those 
various acts might be justified, if they contained the truth. He urged 
in reply, that the justificatory clause only enumerated two items, " wri- 
ting and publishing." That printing and uttering were not in that 
clause ; and therefore, justification could not be pleaded in excuse for 
a prosecution founded on either of these. 



132 

Mr. BROOKE arose next, and said that he never could consent 
to sanction the passage of resolutions having so alarming and danger- 
ous a tendency as those which had been presented to them by the gen- 
tleman from Caroline; and before he gave his vote upon the subject, 
he would beg leave to state to the committee, without adverting to the 
particular. merits of the laws that were the subject of those resolutions, 
the reasons that would govern him in his vote upon that occasion. 

Resolutions such as these, said Mr. Brooke, declaring laws which 
had been made by the government of the United States to be uncon- 
stitutional, null and void, were in his opinion, in the highest extreme 
dangerous and improper, inasmuch as they had not only a tendency to 
inflame the public mind ; they had not only a tendency to lessen that 
confidence that ought to subsist between the representatives of the 
people in the general government and their constituents, but they had 
a tendency to sap the very foundation of the government, by producing 
resistance to its laws, and were in the eyes of all foreign nations evi- 
dence, fatal evidence, of internal discord in this country, and of im- 
becility in our government to protect itself against domestic violence 
and usurpation. For these reasons, he said, he was opposed to these 
resolutions, and did not hesitate to declare himself equally opposed to 
any modification whatsoever of such resolutions, that might be intended 
as an expression of the general sentiment upon this subject, because 
he conceived it to be an improper mode by which to express the wishes 
of the people of this state upon the subject. By what mode then, said 
he, were this assembly to understand and to express the will of the 
people of Virginia upon the laws that had been called in question? 
By an act of the Virginia legislature, declaring these laws to be un- 
constitutional, null and void? No! But by the laws of the general 
government, to whom the power properly belonged of making these 
laws; and by which their will had bqen already expressed. The go- 
vernment of the United States, he said, was one organ of the will of 
the people : the legislature of Virginia'was another organ of the public 
will. Those two organs, then, of the public will were at variance. 
One of these organs made laws for the government of the United 
States : another of these organs, the inferior one, declared these laws 
to be unconstitutional, null and void ; and the question then was, 
which of these organs were they to obey? The government of the 
United States, he said, most indubitably: because in the government 
of the United States, the representation of the people of this state is 
more pure and more equal than it is or could possibly be in the state 
government, under the existing state constitution. In the general 
government, said he, every thirty thousand persons are represented ; 
but in the state government, from the great inequality in the repre- 
sentation, under the existing state constitution, it was utterly impos- 
sible, under existing circumstances, by this mode to express the senti- 
ments and wishes of the people of Virginia upon the laws that had 
been called in question. In some counties in the state, said he, fifteen 
hundred or two thousand freeholders constitute the number of electors, 
who are entitled to but two representatives : in other smaller counties, 
one hundred and fifty or two hundred freeholders constitute the num- 
ber of electors, who are entitled to the same number of representa- 



133 

tives : so that, from this apparent inequality in the representation, cir- 
cumstanced as he was, and a number of other gentlemen in the house, 
how could they form any sort of estimate of the general will of the 
people upon the subject of the laws in question. In the county of 
Prince William, he knew not what the people thought of the laws. 
The representation from Loudoun, Berkeley, Frederick, and many 
other large counties, were in the same situation. To what standard 
then were they to resort in order to ascertain the general will upon 
the subject? To the laws themselves, he said, he would again reply, 
which have been passed by the general government, where we are 
equally represented, and to whom the authority properly belongs by 
the constitution. Since the representatives of the people in the ge- 
neral government then, had made these laws, as a good citizen he 
would obey; as a good citizen he valued the constitution of the 
United States, which he had sworn to support, and which he con- 
ceived to be invaded by the resolutions before them ; and when the 
people of that part of the country which he had the honor to repre- 
sent, became so extremely degenerate, so lost to all regard for the 
great advantages and benefits resulting from a connection between the 
states under the federal constitution, as to give him instructions to 
vote for the adoption of resolutions having so alarming and dangerous 
a tendency as those which had been offered by the gentleman from 
Caroline, he should go in mourning for them; he should bid adieu to 
legislation, and seek an asylum in some other region of the globe, 
among a race of men who had more respect for peace and order, and 
who set a higher value upon the blessings of good government. But 
sensible as he was that his constituents would have discernment and 
patriotism enough to think with him that the resolutions offered for 
our adoption by the worthy member from Caroline, teem with princi- 
ples hostile to the very existence of the general government ; that 
they would think with him that any attempt in the state legislature 
to control the operations of the general government, by the adoption 
of resolutions inviting the sister states to a co-operation in resisting 
its laws, was equally dangerous and improper as it is*unnecessary, he 
should give a negative to these resolutions, and before he sat down, 
beg leave to offer a resolution as a substitute for those which had been 
presented by the member from Caroline. He offered it, he said, at 
this stage of the business, because the tocsin of rebellion had been 
that day sounded in the house by the resolutions accompanying the 
governor's letter from the state of Kentucky. The sooner then, he 
said, our determination not to co-operate in resisting the laws of the 
general government should be announced to that state, the sooner our 
determination to support the American government should be an- 
nounced to the nations of the earth, the better. And for this purpose 
he would offer the resolution which he had before referred to. He 
then read his resolution, in the following words : " Resolved, That as 
it is established by the constitution of the United States, that the 
people thereof have a right to assemble peaceably and to petition the 
government for a redress of grievances, it therefore appears properly 
to belong to the people themselves to petition when they consider 
their rights to be invaded by any acts of the general government; and 



134 

it should of right be left to them if they conceive the laws lately 
passed by the congress of the United States, commonly called the 
4 alien and sedition bills,' to be unconstitutional, or an invasion of 
their rights, to petition for a repeal of the said laws." After reading 
the said resolution, Mr. Brooke handed it in to the clerk's table, 
where the same being again read, was laid upon the table. 

On motion of Mr. Johnson, the committee then rose, the chairman 
reported progress, asked, and had leave for the committee to sit again. 



IN THE HOUSE OF DELEGATES, 

Wednesday, December 19, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

Mr. POPE arose and said, that .he was not accustomed to make 
apologies ; but that he looked upon it as necessary, after what he had 
said before on the subject. He could assure the committee, that what 
he had said at first, was not intended as a speech ; and he had no 
doubt but that it was so understood by others. The observations were 
of a ludicrous turn, and intended only as an answer, of that kind, to 
the gentleman from Prince George's introducing the French into the 
debate. This he thought not proper ; and the object of his former 
remarks therefore was, to treat it in a ludicrous manner. But, on the 
present occasion, he said, he considered himself as called upon by his 
colleague. He would speak therefore while the thing was fresh. — 
And in order that he might not be mistaken in it, he had noted the 
substance. He meant not, he said, to go into the subject before them. 
There had been enough, he thought, in the harvest field already. He 
himself would only glean a little. His colleague had said, that he 
was not instructed : but that if his constituents were so degenerate, 
or debased, he (Mr. Pope) was not positive which of these terms he 
had used, but it was no matter which, it was the same thing, as to in- 
struct him to vote for such resolutions as those which had been offered 
to them by the gentleman from Caroline, that he would go into mourn- 
ing; — that in case the resolutions were adopted, it would be, in his 
opinion, nothing more than the tocsin of rebellion : and in such a 
case, he would go to some other country to seek an asylum. Mr. 
Pope then observed, that he would pause, to give an opportunity for 
correction, if he had misstated any thing. But as he was not cor- 
rected, he said he would proceed to reason from those observations of 
his colleague. He considered them as applying to himself, being one 
of those in favor of the resolutions; but still he did not believe the 
gentleman had intended them as such. He knew him better. How- 
ever, he said, both that gentleman and the gentleman from Frederick, 



135 

whose coolness and moderation must be admitted, had sounded the 
alarm : they had called the resolutions the tocsin of rebellion : they 
would be drawing the sword as it were, and that we might date the 
destruction of the liberty of the people from the day on which they 
passed. He then proceeded to read the resolutions offered by the 
other side, (meaning those offered by JVIr. George K. Taylor,) and to 
comment on the language of them. The gentlemen who were in fa- 
vor of these, he said, displayed boldness. Could they be afraid then 
of the Tesolutions offered by the gentleman from Caroline. There 
was something in that he did not understand. He said he must make 
a deduction from it. The gentlemen surely must be hypochondriac. 
He compared their case to the conceit of Don Quixotte about the 
windmills ; otherwise they could not be alarmed about our having an 
army of Frenchmen at our doors. His colleague, he said, had ob- 
served that we were more equally represented in congress than in this 
assembly. In answer to which, he asked, if the people of New 
Hampshire could more equally represent us than the legislature of 
this state. He then stated what was the usual language of the eastern 
people in congress respecting the Virginians. They were called by 
them disorganizers, jacobins, &c. He then proceeded to show which 
of our members in congress had voted in favor of those laws, and con- 
cluded that Mr. Evans was the only one, general Morgan and Mr. Ma- 
chir, as well as he could recollect, at the time of the passage of the laws, 
being either at home, or on their way home. So much then, he said, 
in answer to the observations of his colleague. He then proceeded to 
answer the observations of the gentleman from Frederick, in regard 
to the gentleman from Prince George's introducing the French into 
the debate. The gentleman from Frederick, he said, seemed to dis- 
approve it. He (Mr. Pope) did so too. He could not imagine how 
the gentleman from Prince George himself could think it proper. 
And how happened it, that this gentleman could not, in the course of 
his reflections think of Ireland too. But British enormities, he sup- 
posed, would not suit his purpose. He then proceeded to enumerate 
them ; and afterwards adverted to the quotations made from Publius, 
by the gentleman from Frederick, respecting a resort to be made to 
the people in such a case as the present one. He (Mr. Pope) thought 
that the legislatures ought to take up the matter first; and the people 
only in the last resort. He stated the nature of the bargain made, at 
the time of adopting the constitution, which was, that of the people 
giving up certain rights, and reserving the rest to themselves. This, 
he said, was proved by the twelfth amendment, which he read. He 
then observed that the greater part of the constitution extended to 
the prohibiting of powers to the states. This amendatory clause 
therefore reserved to them, what was not prohibited. He then read 
the resolution offered by Mr. Brooke, and observed, that the gentle- 
man from Frederick had also acknowledged the people's right to as- 
semble. But how did that right stand? The article securing it he 
said was invaded. He stated an instance of his receiving a wound in 
his left breast; in such case he would be less able to protect himself 
from receiving a wound in the right breast, or elsewhere. This he 
compared to the case of the clause above referred to, and declared 



136 

that our most important rights, secured by that clause, were destroyed. 
Of what account then would be the right of petitioning? If they 
were to lose the resolutions offered by the gentleman from Caroline, 
he said, he would pronounce our liberty to be gone. But whenever 
that was mentioned, he observed, that many of the members on the 
other side would frown and spujrn at it. He then made several con- 
templative observations upon the consequences of our rights being de- 
stroyed, and afterwards observed, that he would recur to that part of 
the speech of the gentleman from Prince George, in which 'he had 
introduced the goddess of liberty; upon which Sir. Pope concluded 
his observations in the following words : " Methinks I heard that gen- 
tleman say to this fair goddess, by your name we roused the American 
people, to oppose the tyranny of Great Britain ! By your name we 
brought into the field large armies ! By your name we drove from 
our country the mercenary troops of George III. and established our 
independence ! We have now no further use for you : we only meant 
to change men, not measures." 

Mr. DANIEL said, that he stood up to express that opinion, which 
his feelings and his judgment compelled him to render on this occa- 
sion. He said, he did not flatter himself, that he should be able to 
afford any considerable aid to the discussion, or to give very material 
information to the committee. But the importance of the question, 
and the solemnity of the appeal, which had been made by the people 
to the assembly, in his opinion, required a liberal discussion to be had ; 
that the subject, being contemplated in various points of view, might 
be the better understood. He should therefore beg the indulgence of 
the committee, while he took a short view of the subjeqt. In doing 
this, he said he should follow the track which had been led by the 
gentlemen opposed to the resolutions before the committee, beginning 
with the " alien act" so called ; and first, with an examination of the 
arguments of the gentlemen from Prince George and Frederick. He 
said, it must have been observed, that in the progress of their obser- 
vations, these gentlemen had assumed three principles, which could 
not be yielded to them, to wit: that the government of the United 
States was a consolidated government — that the doctrine of implica- 
tion supplied it with all necessary powers, and that the necessity and 
expediency of any measure authorized its adoption. These princi- 
ples, he said, were assumed in aid and maintenance of their argu- 
ments, although they were not stated in express terms. But it would 
be easy to show, that the government was not a consolidated govern- 
ment in principle, however it might be in practice ; that the doctrine 
of implication could not extend the powers of government beyond the 
specific grant of the constitution ; and that no necessity or expediency 
ought to authorize a violation of the constitution. 

The constitution of the United States, he said, was a deputation of 
power from the several states, for the purposes of a federal govern- 
ment ; wherein the several states were sovereign and independent as 
to powers not granted, and the federal government sovereign and in- 
dependent as to those powers which were granted. The doctrine of 
implication could not increase the powers of the federal government, 



137 

but could only go, as it was expressed by the constitution, to authorize 
it to make such laws as might be necessary to carry the powers granted 
into effect. Having premised these things, he proceeded to examine 
the arguments which had been urged in favor of the "alien act." 

The gentleman from Prince George, he said, prefaced his observa- 
tions on this subject, by saying that this was an act of the congress of 
the United States, in which were combined the wisdom and delibera- 
tion of all America ; that the determination of this combined wisdom 
and deliberation, was the strongest evidence of the constitutionality 
of the act, and that it was therefore dangerous for us to interfere on 
this subject. Mr. Daniel hoped this mode of reasoning would make 
no impression on the committee. He said, it was an argument that 
would equally apply to every possible measure of the federal govern- 
ment; and by this rule, any act of the government, however palpably 
violating the constitution, and prostrating the rights and liberties of 
the people, might be maintained. It might be said of every act, that 
the combined wisdom and deliberation of congress had sanctioned it. 

The objections which that gentleman made to the mode of remon- 
strance adopted by the resolutions, he said, had already been so hand- 
somely and conclusively answered by a worthy member, (Mr. Mercer,) 
who preceded him in this discussion, that there was no necessity for 
him to give them any attention. 

The same gentleman, he said, in maintaining the constitutionality 
of the " alien act," had observed, that aliens had those rights only in 
the United States, which they have in other countries by the law of 
nations ; and produced Vattel to show, that the sovereign of any na- 
tion had a right to prohibit the entrance of strangers into its territory ; 
to prescribe the condition upon which they may enter; to command 
their departure when necessary; in short, that it was matter of grace, 
and not of right, that strangers were suffered to enter the territories 
of any nation. 

If this doctrine, said Mr. Daniel, be admitted true in the extent in 
which the worthy member quoted it, it was easily seen and could not 
be overlooked, that the authority applied to a consolidated govern- 
ment, where there was but one sovereign of the nation ; but it could 
not apply to the United States, where there exist the several sove- 
reignties of the state governments, and the sovereignty of the federal 
government: of the state governments as to powers not granted : of 
the federal government as to powers which are granted in the federal 
constitution. 

But, said Mr. Daniel, this power over strangers, resulting from the 
right of domain to every nation, and which every independent nation 
will exercise, does rest somewhere among the American people. It 
remained then to be enquired, where this power was lodged in the dis- 
tribution of powers among the several sovereignties which existed in 
the United States, in the manner which he had before stated ? The 
constitution, he said, gave the answer. By section ninth, article first, 
it was declared, that " the migration or importation of such persons 
as any of the states now existing shall think proper to admit, shall not 
be prohibited by the congress prior to the year 1808." Thus the 
power of admitting aliens into its territory, was left to the several 
18 



138 

states respectively. It followed then, that each state had the right to 
prescribe. the terms and conditions upon which aliens should be ad- 
mitted, and was the judge when those terms and conditions were vio- 
lated. Aliens, said he, are admitted into the territory of a nation or 
state, upon certain conditions. They could not therefore, be sent off, 
or commanded to depart, without injustice, so long as they observed 
the conditions upon which they were admitted. That power, which 
was the sovereign judge of the propriety of admitting aliens into its 
territory, must be the sovereign judge of the necessity and justice of 
sending them away. This necessity and justice could not exist, so 
long as the conditions, upon which they were admitted, remained un- 
broken. Each state had this power over its respective territory, by 
the elause of the constitution which he had just recited. Each state, 
said he, was therefore the sovereign judge of the propriety and justice 
of commanding aliens and strangers to depart from the limits of its 
respective territory. 

But, said he, the gentlemen contend, that this article of the consti- 
tution cannot apply ; and here they differ in their construction ; the 
gentleman from Frederick maintaining, that this clause related only 
to the importation of slaves ; the gentleman from Prince George in- 
sisting, that this clause does only secure to the states the right of ad- 
mitting aliens, but does not declare that congress shall not have power 
to send them away. He said, he would examine the objections as 
they stood in order. With respect to the opinion of the member from 
Frederick, (Mr. 3£agill,) the words of the clause, " migration or im- 
portation," were, from their very terms, a sufficient refutation : and 
he believed, if they were to seek the reason why this clause was in- 
serted in the constitution, they should find, that the southern states 
insisted upon it, not only to secure their right of continuing the abo- 
minable slave trade, but that they might also have it in their power to 
encourage and effect the settlement of their back lands. The gentle- 
man, he said, had urged no reason of his own, in support of the opi- 
nion which he gave, but read to the committee parts of the speeches 
of Mr. Mason, and Mr. Madison, delivered in the Virginia conven- 
tion when the constitution was under discussion. But, said Mr. 
Daniel, when this document was examined, it would be found that 
those gentlemen, in the parts of their speeches to which the worthy 
member referred, did simply state, that the right of continuing the 
slave trade was secured by this clause to the southern states, and that 
they did not advance any sentiment or idea, which could, in the re- 
motest degree, maintain the opinion, that this clause related to the 
" importation of slaves only, and did not relate to the migration" of 
aliens into the several states. 

With respect to the objection of the member from Prince George, 
(Mr. G. K. Taylor,) that although this clause secured the right of 
admitting aliens to the several states, yet it did not deny the right of 
congress to send them away, it might be observed, that the objection 
itself admits the sovereign power of the states to permit strangers to 
enter their respective territories. He said he had before endeavoured 
to prove that this power involved necessarily the rights of prescribing 
the conditions upon which aliens might enter, and of controlling them 



139 

after they had entered the territory of any particular state. But to 
meet the objection more pointedly, he would take a view of the powers 
of any particular state, unconnected with and separated from the 
other states. Virginia, for instance, independent of her federation 
and union with the other states, would be completely sovereign, and 
have all possible power and right on this subject to admit aliens into 
her territory, and to control and send them away at pleasure, regard- 
ing only the rules prescribed by the law of nations. He would now 
ask what power and right Virginia had given up on this subject, in 
her connection with the other states, by the federal constitution ? It 
was yielded by the gentleman that she had power and right to admit 
aliens into her territory. He again demanded, had she granted the 
power and right of sending them away to the general government ? 
But, said he, it is declared by the twelfth amendment to the constitu- 
tion, that " the powers not delegated to the states by the constitution, 
nor prohibited by it to the United States, are reserved to the states 
respectively, or to the people ;" therefore he insisted, this power of 
sending away aliens from the territories of the particular states, not 
being delegated to the United States by the constitution, remained 
with Virginia, as it respected the limits of her own particular terri- 
tory. But, said the gentleman from Prince George, Mr. Daniel con- 
tinued, this article of the amendments must be understood that what- 
ever is not expressly reserved to the states is given up to the federal 
government, if necessary. Besides the perversion of the plain mean- 
ing of this article, by this construction, said Mr. Daniel, the gentle- 
man should have remembered that he stated in his argument that a 
construction which leads to absurdity was not true. This construc- 
tion would make this article of the amendments answer no purpose, 
it was therefore, he joined with the gentleman, absurd and untrue. 

The powers of the federal government being expressly defined, " it 
was true as a*general principle," that powers not granted were re- 
tained by the states, said Mr. Daniel; but so jealous were they of 
their rights, and so fearful of the greedy doctrine of implication, that 
this amendment was recommended and annexed to the constitution, 
for the purposes of security and safety. 

The gentlemen, he said, finding it impossible to maintain their 
ground by the aid of any clause of the constitution, wherein power 
was expressly delegated, had sought the assistance of several general 
phrases and expressions, such as, " to provide for the general welfare," 
" to repel invasions," " to make laws necessary to carry the foregoing 
powers into effect," by which they endeavoured to maintain that the 
general government has other powers than those expressly given by, 
and enumerated in the constitution, and unlimited power as to all 
subjects of a general nature. If this be true, said he, if these gene- 
ral expressions and clauses give general and unlimited power, the 
special enumeration of power in the constitution was absurd and use- 
less. Those sage and patriotic politicians who formed the federal 
plan of government, puzzled themselves to no purpose in defining, 
enumerating and limiting power : they had nothing to do but to orga- 
nize the government ; say there should be an executive, judicial and 
legislative body ; prescribe the mode in which the members of the 



140 

several departments should be brought into office ; and declare that 
" they should have power to provide for the general welfare." This 
would be precisely such a constitution as gentlemen contended was 
our federal constitution, in which the powers of the several branches 
of the government were so specially enumerated, limited and defined. 
And it was, Mr. Daniel said, a wilful and studied design that misap- 
plied these general terms and clauses of the constitution, for they are 
necessarily explained by the special grants of power : they must be 
understood, that " congress shall provide for the general welfare," ac- 
cording to the constitution of the United States, and the powers 
therein granted. " Congress may repel invasions," according to the 
constitution and the powers therein granted. " Congress shall have 
power to make all laws which shall be necessary and proper for car- 
rying into execution the foregoing enumerated powers:" not to increase 
and extend their authority, but to carry into effect those powers 
which are enumerated in the constitution. 

He said, he presumed enough had been said in answer to the gen- 
tleman's arguments in favor of the rightful power of congress to legis- 
late on this subject: he would now proceed to examine the arguments 
which had been urged with an intent to maintain the opinion that the 
"trial by jury" was not violated by the " alien act." The gentleman 
from Prince George had said, that aliens were not entitled to a trial 
by jury, because they were not parties to the constitution, were under 
no obligations to the government, and that no duties could be de- 
manded of them. That citizens alone had a right to a trial by jury, 
because they were parties to the constitution, which secured that 
right, and on account of -their obligations and duties to the govern- 
ment. 

Mr. Daniel said, if the worthy member had have been as attentive 
to the authority of Vattel on this point, as he was when he hoped to 
draw something from it to support him, he would have* found the re- 
verse of almost every thing he stated relative to aliens, to be true; he 
would have found that they had rights to be protected, and duties and 
obligations to discharge; that they were bound to obey the general 
laws of the land, and that they had a right to be tried according to the 
general laws of the land. He would have found that, " in countries 
where a stranger may freely enter, (as in this,) the sovereign is sup- 
posed to allow him access only upon this condition, that he be subject 
to the laws, I mean the general laws made to maintain good order, 
and which have no relation to the title of citizen or subject of the 
state. The public safety, the rights of the nation, and of the Prince, 
necessarily require this condition ; and the stranger tacitly submits to 
it as soon as he enters the country, as he cannot presume upon having 
access upon any other footing. The empire has the right of com- 
mand in the whole country, and the laws are not confined to regu- 
lating the citizens among themselves, but they determine what ought 
to be observed by all orders of people throughout the whole extent of 
the state. In virtue of this submission, the strangers who commit a 
fault ought to be punished according to the laws of the country." 
Vattel, book 2d, chap. viii. pa. 267, sect. 101 and 102. And again, 
page 268, section 104, he would have found that, "the sovereign 



141 

ought not to grant an entrance into his state to make strangers fall 
into a snare : as soon as he receives them he engages to protect them 
as his own subjects, and to make them enjoy, as much as depends on 
him, an entire security," according to the general laws of the land. 
He trusted that the committee were sufficiently satisfied that aliens 
have rights which are under the protection of the laws of that state 
wherein they reside ; that they have duties and obligations to discharge 
to that state, and that if they commit a fault, they have a right to be 
tried and punished according to the general laws of that state. The 
worthy member from Prince George, as if he foresaw his defeat on 
this ground, took refuge under that clause of the " alien act," which 
provides that " an alien may prove the falsity of the charge." 
Mere mockery of justice, said he, to prove the falsity of suspicion ! 
Prove the falsity of being suspected of what he did not know, of what 
he was not informed ! There was no rule established, by observing 
which he could avoid suspicion : there was no rule directing what 
shall be done and what shall be avoided by the alien : he could only 
know that it was dangerous for him to become suspected by thepresi* 
dent of what he did not know, and that he might if he could prove 
the falsity of a suspicion to which some conduct of his, but what par- 
ticular conduct he could not tell, may have given birth. He then ob- 
served, that the same gentleman, quitting all constitutional principles, 
appealed to the doctrine of necessity, and insisted that it Was abso- 
lutely necessary to compel dangerous aliens to depart from our coun- 
try, and that the president of the United States ought fo be authorized 
to enforce their departure. But, Mr. Daniel said, he would insist 
that some rule should be established, instead of the bar of suspicion, 
to decide who were, and who were not, dangerous aliens. 

He should require proof, that the constitution authorized congress 
to invest the president with such a power : this had not been shown, 
it could not be shewn. He contended, therefore, that this power was 
lodged in the several states respectively, and wisely lodged. For in 
case of emergency, each state had it in its power to act immediately, 
before the president could be informed of the danger. The authority 
of each state was always at hand ; could be immediately applied to, 
and would be readily inclined to take efficient measures for the safety 
of its citizens. The member from Prince George, he said, had ob- 
served, that such a provision as the one marked by the alien act, was 
necessary to guard against the French and their intrigues. If so, he 
said, the states were competent to make the provision. He believed 
they were as much disposed as any other body would be, to adopt all 
necessary and constitutional measures. He hoped, that Virginia had 
virtue and patriotism sufficient to view with indignation, and to sup- 
press with vigor, any intrigues of a dangerous nature, whether medi- 
tated by France or any other nation. But, in adopting such a mea- 
sure, he wished to observe the laws of nations. He could not con- 
sent, under the pretence of guarding against aliens, who were citizens 
of France, to violate the rights of other aliens among us, who might 
be citizens of any other nation. He contended, that the alien act 
was general, and equally applied to all aliens, whether citizens of 
France, or subjects of another power. He stated a case from the law 



142 

of nations, to prove that such a regulation, if made at all, should be 
particularly directed against the citizens or subjects of that nation 
from whom danger is apprehended. 

The member from Prince George, he said, had read a clause from 
the Virginia laws, which he assimilated to the alien act passed by 
congress, and from which he argued the right of congress to pass the 
law in question. He requested that the law might again be read. 
(It was accordingly read by the clerk in the following words : " It 
shall and may be lawful for the governor, with the advice of the coun- 
cil of state, to apprehend and secure, or cause to be apprehended and 
secured, or compelled to depart this commonwealth, all suspicious per- 
sons, being the subjects of any foreign power or state, who shall have 
made a declaration of war against the said states, or from whom the 
president of the United States shall apprehend hostile designs against 
the said states, provided information thereof shall have been previously 
received by the executive from him.") Mr. Daniel then said, that 
the law which had been read, pursued the law of nations ; and clearly 
recognized the distinction which he had before laid down, that it did 
not authorize the governor to apprehend and send away all aliens 
whom he might suspect ; but such suspicious aliens only whose nation 
was at war with these states, or from whose nation hostilities were ap- 
prehended. That this law was not general, but particularly directed 
against those aliens, whose nation was at war with this country, or 
from whose nation there were reasons to expect war. That this law, 
instead of furnishing an argument in favor of the right of congress to 
pass the law in question, was a strong proof that the legislature of 
Virginia, at the time of its passage, entertained the opinion, that the 
power to regulate this subject belonged to the state. He said, it was 
remarkable that the gentleman from Prince George, on this occasion, 
following the example of the present administration, had indulged 
himself in declamation against the intrigues of the French nation ; 
had inveighed with the utmost bitterness against their policy and in- 
justice ; had threatened us with the horrors of another St. Domingo ; 
that our slaves would be let loose upon us ; that our wives, our daugh- 
ters, our sisters, would be forced into the rude embraces of the ruth- 
less negro, who would butcher them before our eyes, immediately af- 
ter having satisfied his lustful appetite. Mr. Daniel said, this lan- 
guage was addressed to the feelings and passions, and not to the un- 
derstanding of the committee. For his part, he should consider the 
subject upon principle. To the intrigues of France, he opposed the 
virtue and patriotism of our citizens in general ; the vigilance and 
activity of our officers and magistrates ; and the wisdom of the state 
legislature to observe all necessary measures, an evidence of which 
was seen in the law which had been read. That invectives against 
France could not prove the constitutionality of the law in question. 
That if they were intended to excite the indignation of the commit- 
tee against that republic, the gentleman had spent his time in vain ; 
for that the injustice and rapacity of that nation, without the aid of 
the gentleman's elocution, had already inflamed the mind of every 
member into bitterness and resentment. But, amid this universal 
glow of indignant feelings, he wished to see our glorious constitutions 



143 

saved inviolate. Secure me in this point, said Mr. Daniel; save the 
constitutions of my country from innovation and violence, and I will 
join hands with the gentleman, and swear eternal enmity to France, 
and all other nations of the earth, who shall be hostile to the liberty 
and independence of the United States. But, said he, it would seem 
as if the injustice of France to other nations ; her base attack upon 
our neutral rights and undefended, unoffending commerce, had so af- 
frighted gentlemen, that they were ready to abandon those principles 
which were once so dear to all America. Inglorious sons, however 
were they, who for distant and feeble alarms would forsake those 
principles and those rights which our forefathers sought at every 
hazard, and maintained amidst the threatening ruin of war and 
bloodshed. In vain, said he, are we told that the French government 
is a military despotism, which proscribes the liberty of the press, and 
carries its measures by force of the bayonet ! It cannot reconcile us 
to like measurs in the United States. It cannot reconcile us to a 
sedition law and to a standing army, which will probably produce the 
same miserable effects here, as they have done in France. It cannot 
prove to us the constitutionality of the acts in question. 

He said, before he took leave of this part of the subject, he would 
take notice of a charge which had been made by the gentleman from 
Frederick, against those who advocated the resolutions, that they ad- 
dressed arguments to the humanity of the committee. He would re- 
ply, that the opposers of the resolutions addressed arguments to the 
fears of the committee ; that admitting the charge to be true, (which 
was by no means the case,) it was much more honorable, both for 
those who make the address, and those who are addressed, that appli- 
cation be made to the feelings of humanity, rather than to those which 
are excited by fear and alarm. That the gentleman himself had 
threatened us with confusion and darkness, and foreboded the hasty 
setting of the sun of American glory, if we adopted the resolutions ; 
and his coadjutor from Prince George had invaded our country with a 
French army, and slaughtered our best and dearest friends before our 
eyes. This mode of argument, however unfair, was by no means 
novel. When our gallant forefathers conceived the mighty design of 
declaring the American world independent and free, the same doc- 
trine of terror and alarm, of dangers from abroad, and mischiefs and 
ruins incalculable within, was pressed and repeated. But resting firm 
on principle, they steadily pursued truth, and achieved the glorious 
deed of American independence. As then, so now, he hoped, this 
doctrine of terrorism would make no impression ; but that the com- 
mittee would consider the subject upon principle, and determine upon 
its merits. 

Mr. Daniel observed, that in the course of the observations which 
he had made, to obviate exceptions which gentlemen had taken to the 
resolutions proposed, it was to be discovered, that his principal objec- 
tions to the " alien act" were, that it violated the sovereignty of the 
state governments ; that it blended legislative, executive, and judicial 
powers ; that it violated the right of trial by jury, contrary to the con- 
stitution. 



144 

With respect to the first objection, he had shown by the foregoing 
arguments, that the state governments were sovereign as to those 
powers not granted to congress, and this subject, not only not being 
granted, but prohibited congress by the ninth section first article of 
the constitution, it followed, that as to this subject, the states were 
severally sovereign ; and that any attempt by congress to legislate on 
this subject, within the limits of any particular state, was an attack 
upon the sovereignty thereof. 

As to the second objection, that the alien act blended legislative, 
judicial, and executive powers, it might be observed, that legislative 
power is the authority to prescribe a rule of conduct : this rule is the 
act of the legislative power, declaring what shall be done, and what 
shall be avoided. The " alien act," said Mr. Daniel, does not declare 
what the alien shall do, and what he shall avoid : it does not declare 
a rule of conduct, which he can know and observe : the president has 
the power to prescribe this rule of conduct for the alien, by bringing 
him to the bar of suspicion, if he does not observe a line of conduct, 
which, not being designated by the " alien act," is only known and 
subject to the president's will. But to declare this rule of conduct is 
a legislative act; the president, by this law, has effectually the right 
to prescribe this rule : therefore, he contended, that the president was 
invested with effectual legislative power. He certainly had the power 
to judge when the alien came within the rule prescribed by his suspi- 
cion : and in this, as in all other cases, he was invested with execu- 
tive power. Thus in one person, contrary to the constitution, was to 
be seen the lawgiver, judge, and executioner. 

With regard to the third objection, that the " alien act" infringed 
the right of trial by jury, he referred the committee to the seventh ar- 
ticle of the amendments to the constitution, where it is found, that 
" no person shall be deprived of his life, liberty or property, without 
due process of law." He contended, that an alien was a person, who 
had rights of life, liberty and property, and was therefore within the 
provision of this part of the constitution. He had before shown, that 
by the law of nations, an alien had the right of being tried according 
to the general laws of the land. It was here evident, that an alien 
was a person who could not be deprived of his " liberty" without due 
process of law. It remained then to be enquired what was this " due 
process of law ?" This "due process of law," he said, was to be 
found in the seventh and eighth articles of the amendments to the 
constitution, that " no person shall be held to answer an accusation, 
unless on a presentment or indictment by a grand jury ;" that " the 
accused shall enjoy the right to a speedy and public trial by an im- 
partial jury, of the state and district wherein the crime shall have 
been committed ; to be informed of the nature and cause of the ac- 
cusation ; to be confronted with the witnesses against him ; to have 
compulsory process for obtaining witnesses in his favor ; and to have 
the assistance of counsel for his defence." This mode of trial pointed 
out by the constitution, this " due process of law," was disregarded, 
and entirely abolished by the " alien act." Having taken this short 
view of the alien act, he said he would proceed to consider the " se- 
dition law/' as it was commonly termed. He could have wished that 



145 

gentlemen had given their opinions freely on this subject. The gen- 
tleman from Prince George, he said, had given some apology why he 
declined the discussion : he had committed himself a day or two past, 
by declaring that the sedition law was already sufficiently odious. It 
was therefore, Mr. Danid said, he supposed the gentlemen thought 
it best not to meddle with it. He would receive the gentleman's 
apology, and proceed to examine the law, according to his own ideas 
on the subject, in which, he would occasionally take notice of what 
the gentleman from Frederick had urged. 

He stated that the acts enumerated in the first section of the sedi- 
tion law, as offences to be punished with heavy fines and long im- 
prisonment, were " to combine or conspire together with intent to op- 
pose any measure, or to impede the operation of any law of the United 
States;" or to intimidate any officer under the government of the 
same, from undertaking, performing, or executing his trust or duty; 
or to counsel, advise, or attempt to procure any insurrection, riot, un- 
lawful assembly, or combination, whether such counsel or advice had 
effect or not. The offences enumerated in the second section of said 
law, he said, were, " to write, print, utter, or publish, or to cause the 
same to be done, or to aid in writing, printing, uttering, or publishing, 
any false writings against the government, the president, or either 
house of the congress of the United States, with intent to defame the 
government, either house of congress, or the president, or to bring 
them, or either of them, into disrepute; or to excite against them, or 
either of them, the hatred of the people; or to excite any unlawful 
combination, for opposing any law, or act of the president of the United 
States, or to defeat any such law or act" These were the provisions 
of the act. The provisions of the constitution were, " Congress shall 
make no law respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of speech, or of 
the press ; or of the right of the people peaceably to assemble, and to 
petition the government for a redress of grievances." Third article 
of amendments to the constitution. He requested gentlemen to read 
the one and the other ; to compare them, and reconcile them if possi- 
ble. He was one of those who believed, that the first clause of the 
law would in its operation, effectually destroy the liberty of speech ; 
and the second clause did most completely annihilate the freedom of 
the press. " To combine, conspire, counsel and advise together" was 
a natural right of self-defence, belonging to the people ; it could only 
be exercised by the use of speech ; it was a right of self-defence 
against the tyranny and oppression of government ; it ought to be ex- 
ercised with great caution ; and never, but upon occasions of extreme 
necessity. Of this necessity, the people are the only judges. For if 
government could control this right ; if government were the judge, 
when the necessity of exercising this right has arrived, the right never 
will be used; for government never will judge that the people ought 
to oppose its measures, however unjust, however tyrannical, and des- 
potically oppressive. This right, although subject to abuse, like many 
other invaluable rights, was nevertheless essential to, and inseparable 
from, the liberties of the people. The warmest friend of any govern- 
ment would not contend that it was infallible. The best of govern- 
19 



146 

ments may possibly change into tyranny and despotism. Measures 
may be adopted violating the constitution, and prostrating the right3 
and principles of the people. He hoped never to see the time; but, 
if it should so happen, no man would deny but that such measures 
ought to be opposed. But, he would ask, how they could be effectu- 
ally opposed, without the people should " combine, conspire, counsel 
and advise" together? One man could do nothing. This right of 
adopting the only efficient plan of opposition to unconstitutional, op- 
pressive and tyrannical measures, whenever they should occur, he 
hoped never would be given up. This right had been well exercised 
on a former occasion against England ; and it would probably be well 
used again, if our liberties were sufficiently endangered, to call forth 
its exertion. But for the spirited and energetic exercise of this right ; 
but for the " combining, conspiring, counselling and advising" to- 
gether of the American people, these United States, now independent 
and free, would have remained under the tyrannical and despotic do- 
mination of the British king. It had been said, that this doctrine 
leads to anarchy and confusion ; but, said Mr. Daniel, this doctrine 
gave birth and success to our revolution ; secured our present liberty, 
and the privileges consequent thereupon. The contrary doctrine, said 
Mr. Daniel, leads to passive obedience and non-resistance, to tyranny 
and oppression, more certain, and more dangerous. If a measure 
was unpopular, and should give discontent, it would be discussed : if 
it should thereupon be found to be tolerable, it would be acquiesced 
in. If, on the contrary, measures should be adopted of such danger- 
ous and destructive tendency, that they ought to be opposed ; he 
would ask, how this could be done, but by the means which are for- 
bidden in the first section of the law in question? These were the 
only means by which liberty, once trampled down by tyrants and des- 
pots, could be reinstated : and if the general government continued 
its rapid progress of violating the constitution, and infringing the liber- 
ties of the people, the time he feared was hastening on, when the peo- 
ple would find it necessary again, to exercise this natural right of de- 
fence. 

Mr. Daniel said, he would now turn his attention to that part of the 
law which affects the freedom of the press, in which the constitution 
was most palpably, and most dangerously infringed. On this subject, 
he said, the gentleman from Frederick had contended, that the con- 
stitution was not violated ; that the common law was a part of the 
constitution ; and that the offences enumerated in the act, were always 
punishable at common law. If this be the fact, said Mr. Daniel, the 
law in question is nugatory ; and the clause of the constitution on this 
subject, which had been read, was of no effect. By the gentleman's 
common law, which he had read, offences against the king and his 
government, were precisely such as were enumerated as offences in 
this law, against the president and government of the United States; 
substituting the word " president," in the latter case, for the word 
"king," in the former. These offences might be "by speaking, or 
writing against them ; or wishing him (the king in England, and the 
president in America,) ill, giving out scandalous stories concerning 
them, (the king and his government in England, and the president 



147 

and his government in America,) or doing any thing, that may tend 
to lessen him (the king, or president, as the case may be) in the es- 
teem of his subjects; weaken the government, or raise jealousies 
among the people." Blackstone's Commentaries, page 123. When 
our "sedition law' 5 was so like the law of England, he did not won- 
der that the gentleman had supposed that the law of England was in 
force here ; one being the copy of the other, with the necessary change 
of names, and some other trivial circumstances; nor did he wonder 
that the gentleman should say, in conformity to that authority, that 
M the liberty of the press, properly understood, is by no means in- 
fringed or violated" by such regulations; "but consists in laying no 
previous restraints upon publications ;" and is otherwise " licentious- 
ness." Blaclcstone,pa. 151, that a printer may publish what he pleases, 
but must answer the consequence, if a certain set of men shall ad- 
judge his writings to contain "dangerous and licentious sentiments." 
If this be true, he said, he would be glad to be informed, for what 
purpose was it declared by the constitution, that " the freedom of the 
press should not be restrained ;" and how we were more free in the 
United States than the people of any other nation whatsoever? The 
most oppressed of Europe; the slaves and subjects of th§ most des- 
potic power on the earth, he said, had the right to speak, write and 
print, whatever they pleased, but were liable to be punished after- 
wards, if they spoke, wrote or printed, any thing that was offensive to 
the government : that there was veFy little difference as to the liberty 
of the press, whether the restraints imposed, were "previous" or sub- 
sequent to publications. If the press was subjected to a. political li- 
censer, the discretion of the printer would be taken away, and with it 
his responsibility; and nothing would be printed, but what was agree- 
able to the political opinions of a certain set of men ; whereas subse- 
quent restraints have the same operation, by saying, if you do " write, 
print, utter or publish," any thing contrary to the political opinions, 
reputation or principles of certain men, you shall be fined and impri- 
soned. In vain, he said, were we told that the accused may prove 
the truth of his writings or printing, and that we are only forbidden to 
write or print false facts. The truth was, that it was not the facts, 
but the deductions and conclusions drawn from certain facts, which 
would constitute the offence. If a man was to write and publish that 
the congress of the United States had passed the " alien and sedition 
acts," that the provisions of the said acts were in these words, reciting 
the laws as they are ; that the constitution was in these words, reciting 
the provisions of the constitution truly ; and conclude, that the said 
acts violated the constitution ; that the congress and the president, in 
enacting the same, had assumed powers not granted to them, and had 
encroached upon the liberties of the people, who ought to take mea- 
sures "to defeat" these laws, and this " act of the president." Here 
the facts stated, that the laws had been passed, and that the constitu- 
tion was in terms stated, could be proved, and would not constitute 
the offence, but the inference from these facts, that the congress, in 
enacting the said laws, had violated the constitution, assumed powers 
not delegated to them, and usurped the rights and liberties of the peo- 
ple, in which usurpation the president had joined, would certainly 



148 

have a tendency " to defame the government, the congress, and the 
president, and to bring them into disrepute and hatred among the 
people," and would therefore constitute the offence. The inference 
or conclusion from certain facts might be true or not, and was mere 
matter of opinion. It was opinion then, political opinion, which was 
the real object of punishment. The deduction made from the facts 
just stated, he said, was in his opinion true, the consequence of which 
was, that the congress and president of the United States had not his 
confidence; with him they were in "disrepute." But he could not 
prove that the opinion was true, as a fact; he could offer those rea- 
sons which convinced his mind of its truth, but they might not be sa- 
tisfactory to a jury summoned with a special regard to their political 
opinions, or to a judge of the United States, most of whom had already 
pronounced their opinion on the subject, either in pamphlets, or po- 
litical instead of legal charges to the grand juries of the several cir- 
cuits of the United States ; thus prejudging a constitutional question, 
which they knew would be made, if ever the law was attempted to be 
carried into effect. 

He said he would state one more case to exemplify his opinion. If 
at the time»of British oppressions, when the parliament of England 
boldly implied the right to make laws for, and to tax the American 
people, without representation, any man had by writing maintained 
that representation and taxation were inseparable, and that it was an 
usurpation and assumption of power by parliament to impose taxes on 
the American colonies, who were not represented in parliament, the 
fact here stated would not offend, because true ; but the conclusion, 
the charge of usurpation, made upon the British government, would 
certainly have a tendency to bring it into "disrepute and hatred" 
among the people, as it did most effectually in America, and would 
have constituted the offence. This opinion, though now clearly ad- 
mitted to be true, was then new, and could not be proven true to an 
English judge and jury, for they were so impressed with its falsity, 
that the nation undertook and carried on a bloody and expensive war, 
to correct its error. He concluded that the provisions of this act 
abridged and infringed the liberty of the press, which at the time of 
the adoption of the constitution had no other restraint than the re- 
sponsibility of the author to the individual who might be injured by 
his writing or printing : that they destroyed all enquiry into political 
motives, silenced scrutiny, weakened the responsibility of public ser- 
vants, and established political and executive infallibility. That the 
solicitude discovered by the government to defend itself against the 
attacks of its own citizens, was an evidence that its acts would not 
deserve their confidence and esteem : that the solicitude thus expressed 
by threats of fine and imprisonment, to keep the president for the 
time being from coming " into disrepute," was evidence of a fear that a 
comparison of motives and views would prove favorable to his com- 
petitor, and was calculated to keep the real merits of competition out 
of view, inasmuch as the merits of one of the proposed candidates 
could not be insisted on to advantage, without exposing the demerits 
of the other, which would tend to bring him " into disrepute." And 
if the one to whom the want of merit should be ascribed, should be 



149 

president for the time being, thus to bring him into " disrepute," 
would be to bring the person discussing the subject into the pains of 
fine and imprisonment. 

It had been contended, said Mr. Daniel, by the gentleman from 
Frederick, that the adoption of the resolutions would be an infringe- 
ment of the right of the people to petition. He, Mr. Daniel, would 
state, that this right might be exercised by an individual, by an as- 
semblage of individuals, or by the representatives of the people; 
which last mode was preferable, when the sovereignty of the state, as 
well as the appropriate rights of the people was attacked, as in the 
present case. He conceived, however, that the law in question had 
very much abridged the right of the people to petition and remon- 
strate. The necessity and propriety of petitions and remonstrances 
could not be seen but by discussion : the right itself could not be ef- 
fectually used, without " counselling and advising together." Three 
or more persons would constitute an " unlawful assembly ;" for it 
would be easily said, that they were unlawfully assembled, when they 
intended, by discussing certain acts of the president, or laws of the 
government, " to defeat" the same, by inducing the people to petition 
and remonstrate ; or if the same were not defeated, by virtue of such 
petition and remonstrance, to bring the government and president into 
"disrepute," for continuing such acts and laws in operation, against 
which the people had petitioned and remonstrated. But those things 
being offences, and so enumerated in one clause of the law, an as- 
sembly of three or more persons, contemplating the objects just de- 
scribed, would be " unlawful," within the purview of the act, and 
subject to fine and imprisonment. Again, he said, the dangerous and 
ruinous tendency of certain measures, might not be observed by the 
people of any particular district. A few, however, might wish a peti- 
tion to be made, to remove the grievance of the measures ; in order 
to which, they would individually address the district by writing, in 
which they would expose and censure the evil tendency of the said 
measures, to excite the people to petition and remonstrate, " to de- 
feat" the same, or necessarily to bring the friends of the continuance 
thereof into " disrepute." This would be an offence within the pur- 
view of the second clause of the law. Thus, said he, by one act we 
have seen, that that clause of the constitution, which secures the 
right of speech, of the press, of petition, of the free exercise of reli- 
gious opinion to the people, is prostrated in every respect, except as 
it relates to religion. And this last and most invaluable right, he had 
no doubt would soon be invaded, inasmuch as he had been informed > 
that the friends of the present measures had already begun to insinu- 
ate, that an " established church was one of the strongest props to 
government :" and inasmuch, that the same reasons might be urged in 
its favor, as in favor of the abridgment of the liberty of the press. 
But it was said, that the press was still left free to print truth : " its 
licentiousness and abuse" are only forbid. So it might be said of re- 
ligion : true religion only ought to be tolerated : the abuse of religion 
ought to be forbidden : the " licentiousness" of particular sectaries 
ought to be restrained. 



150 

He said, he was fearful that he had already trespassed upon the pa- 
tience of the committee, and he would hasten to a conclusion, with a 
few remarks on the particular shape and address of the resolutions. 
It had been objected by gentlemen, that it was going too far to de- 
clare the acts in question, to be " no law, null, void and of no effect :" 
that it was sufficient to say they were unconstitutional. He said, if 
they were unconstitutional, it followed necessarily that they were " not 
law, but null, void and of no effect." But, if those particular words 
were offensive to gentlemen he had no objection to any modification, 
so the principle were retained. As to the objection, that they were 
improperly addressed to the other states, Mr. Daniel said, he supposed 
that this mode was extremely eligible. If the other states think with 
this, that the laws are unconstitutional, the laws will be repealed, and 
the constitutional question will be settled by this declaration of a ma- 
jority of the states: thereby destroying the force of this precedent, and 
precluding from any future congress, who might be disposed to carry 
the principle to a more pernicious and ruinous extent, the force of 
any argument which might be derived from these laws. If, on the 
contrary, a sufficient majority of the states should declare their opi- 
nion, that the constitution gave congress authority to pass these laws, 
the constitutional question would still be settled ; but an attempt might 
be made so to amend the constitution, as to take from congress this 
authority, which in our opinion was so pernicious and dangerous. 

He then concluded by saying, that something must be done: the 
people were not satisfied : they expected that this legislature would 
adopt some measure on this subject : that the constitution of the 
United States was the basis of public tranquillity ; the pledge of the 
sovereignty of the states, and of the liberties of the people. But, said 
he, this basis of public tranquillity, this pledge of liberty and security 
is but a name, a mere phantom, unless it be strictly observed. It be- 
came our duty to watch attentively, to see that it was not violated ; to 
see that it was equally observed by those who govern, and by those 
who are destined to obey. To attack the constitution was an offence 
against society ; and if those guilty of it were invested with authority, 
they added to the offence a perfidious abuse of the power with which 
they were intrusted. It was our duty, said he, to suppress this abuse 
with our utmost vigor and vigilance. It was strange to see a free 
constitution openly and boldly attacked by those who were put in 
power under it. It was generally by silent and slow attacks, that free 
governments had progressively changed, till very little of their original 
texture and principles remained : that the doctrine of implication had 
introduced innovations, under the influence and operation of which, the 
freest governments had been enslaved. It was our duty to guard against 
innovations. The people of Virginia had been attentive to this sub- 
ject. The petitions and remonstrances, which had been read to the 
committee, proved that the people were seriously alarmed at the inno- 
vations of the federal government. He said they proved more : they 
proved that the people thought that their servants, in the administra- 
tion of the federal government, were not even modest enough to wait 
the increase of their power by progressive change. That their ambi- 
tion exceeded the resources of the doctrine of implication : that their 



151 

thirst of power could not be satiated, but by a direct attack upon the 
constitution, and a prostration of the great rights of the people. He 
said, this apprehension of the people, which he thought just, would 
be satisfied. He thought the mode proposed by the resolutions was 
most likely to effect this purpose, as well as other important purposes. 
He said, if they who were the representatives of the people, would 
not act for them when called upon, the people will speak for them- 
selves; and as the voice of God, they would be heard. He hoped 
this final and dreadful appeal would never be necessary. He pre- 
ferred the resolutions, and hoped they would be adopted by the com- 
mittee. 

Mr. CURETON arose next, and said, that he wished to make 
some few observations. He confessed, that he had before had some 
doubt about the alien law ; but that the gentleman last up had con- 
vinced him of the propriety of it, and was proceeding to show how, 
but observed, that as the committee appeared to be impatient, he 
would not trouble them any longer, and therefore moved that the com- 
mittee should rise, but upon general Lee's rising to speak, he with- 
drew his motion. 

General LEE then proceeded to observe, that as the subject re- 
quired the fullest deliberation, he hoped that all the papers respecting 
it would be read that evening, to prevent any interruption in the de- 
bate the next day. By this arrangement time would be saved, and 
perspicuity in argument promoted. It was too late in the evening 
then to enter at large upon the subject. This he would defer till the 
next day, when he should with frankness and candor deliver his sen- 
timents, with a view of showing the pernicious tendency of the reso- 
lutions on the table. 

He begged to know how many counties in the state had presented 
petitions to the assembly on this subject ; any one of which petitions, 
with the alien law, he must trouble the clerk, he said, to read, as he 
believed this law particularly to be much misunderstood. He himself 
considered it as going only to -enable the chief magistrate to remove 
dangerous aliens, thereby preventing the commission of crime, and 
not punishing crimes committed. 

The sedition law, he said, so far as he recollected it, was free from 
the charges contained in the resolutions. If then, on examination, it 
was found that these laws were constitutional, the resolutions proposed 
must be rejected. If they were found unconstitutional, it was proper 
to interfere and restore the constitution to its original purity. In this 
salutary wish he would cheerfully join, but he must take steps becom- 
ing a portion of the same people to take, full of friendship, full of 
mutual respect, and tending to perpetuate union and brotherly love, 
not disunion and hatred. 

Mr. NICHOLAS arose next, and said that the gentleman last up 
wished to save time, by having all the papers read that evening, but 
he wished to know how that would save time? The gentleman had 
said too that the alien law extended to prevent only, and not to punish 



152 

crimes. Mr. Nicholas asked, if banishment was no punishment? He 
had always understood, he said, that it was; and then observed, that 
he should have been glad that the gentleman had been present from 
the commencement of the discussion, that he might perfectly have 
understood the nature of it. 

Mr. John Taylor's resolutions were then read, together with those 
laid upon the table by other gentlemen, and the memorial from the 
people of Caroline county. 

Mr. BROOKE then arose, and observed, that laboring under all 
the diffidence that a person unaccustomed to public speaking would 
naturally feel, in delivering his sentiments upon so momentous an oc- 
casion as the present, he was sensible of the disadvantage he must 
have labored under, in delivering his sentiments upon the subject the 
day before ; and on this account, he felt more sensibly the attack made 
upon him by his colleague, and the attempt made by him to distort 
the observations, which, in the midst of his confusion and embarrass- 
ment, Mr. Brooke said, had fallen from him. These observations that 
gentleman had undertaken to caricature. A more proper person for 
a task of this kind could not have undertaken it. Pie would do jus- 
tice to every subject he ever did undertake. Mr. Brooke then said, 
that he would proceed to repeat to the committee his observations just 
as they were expressed, which, notwithstanding the diffidence he felt 
on the occasion, he perfectly recollected; and he believed that other 
gentlemen, not disposed to distort his meaning, would agree with him 
in his statement. He had observed, he said, that he was opposed to 
the resolutions offered by the gentleman from Caroline, however mo- 
dified; that he was under no instructions; and that if the people of 
his county should be so degenerate, (to the best of his recollection was 
the term ; but if the term debased, which his colleague had stated as 
a stronger expression, would suit his purpose better it might be so) as 
to instruct him to vote for resolutions having so dangerous and alarm- 
ing a tendency as those referred to, he should go into mourning; he 
should bid. adieu to legislation, and seek an asylum in some other re- 
gion of the globe, amongst a race of mortals who had more respect 
for peace and order, and who set a higher value upon the blessings of 
good government. Mr. Brooke then concluded by observing, that he 
had thus recapitulated the observations used by him, no less to gratify 
his colleague who had called upon him, than that the people of his 
county might know that these were his sentiments. 

Mr. BOOKER then moved that the committee should rise. 

Mr. JOHN TAYLOR hoped that the committee would not rise, 
but that they would proceed. Several days, he said, had already been 
spent in the discussion of the business before them ; and much more 
time might be spent, unless they should adopt a different mode. They 
had until then been in the habit of receiving only one speech a day ; 
and the only way to dispatch the business he thought, would be to 
meet early and sit late. 



153 

Mr. GEO. K. TAYLOR said, that he intended to say something 
further upon the subject ; but wished not to hurry the committee. 

Mr. COWAN also observed, that he intended to deliver his senti- 
ments to the committee, tending to show that the alien law was con- 
stitutional ; but wished not to press the matter then. 

Mr. NICHOLAS hoped that the committee would not rise. They 
had as yet proceeded but slowly. He hoped therefore, that the gen- 
tleman last up would proceed : he should be glad to hear him. 

The same being also requested by others at the same time, 

Mr. COWAN proceeded, by observing that much had been said 
upon the subject already. It was a question of great importance, and 
the great attention which had been given by the committee, was a 
proof of the talents of the speakers. He confessed that he had no 
such claim, but came forward on another ground. He felt it a duty 
to his constituents and the whole community, to engage in the discus- 
sion. He had noticed, he said, that the observations of the gentle- 
man from Prince George had been objected to on one particular 
ground, that of their mingling the affairs of France with the subject, 
of the laws under consideration. But he (Mr. Cowan) thought that 
could not be avoided. The present question he said, had its root in 
French transactions. The rights of citizens and aliens, he thought 
had been confounded ; and in order to have a clear apprehension of 
them, a standard ought to be fixed upon to try them. That standard 
he pronounced to be, as to citizens, the constitution ; as to aliens, the 
law of nations. Every sovereign nation he said, was possessed of cer- 
tain rights. Amongst them the right to govern aliens, was a perfect 
right. It vested a power to restrain them. That right, he said, con- 
tained two things ; the first, was that of obliging aliens to depart, the 
second, was to allow them to remain. 

An alien, said Mr. Cowan, entering into a country, as the condition 
of such entrance, doth agree to submit to the laws of its sovereignty. 
Submitting to them did imply, that when required, he was bound to 
retire. Where did the exercise of this power rest? By the constitu- 
tion the power to exclude, remains in the states for a limited time. It 
was true that the powers not particularly granted are reserved. It 
had been said that the state was sovereign. It was so, but not in the 
latitude contended for. For, if it were so, the clause in the constitu- 
tion respecting the migration and importation of persons, was an ar- 
gument to the contrary. How did the state derive this right? If it 
had it before the adoption of the constitution, the constitution gave it 
to no purpose. , It was a supererogation. By the adoption of the con- 
stitution, Mr. Cowan conceived, the states accepted that right. Where 
was it then? It was with the people, who, in order to the distribu- 
tion of powers therein specified, and for that purpose, had resumed 
their full, their native rights. That, indeed, was a matter of moment. 
For, could they once ascertain where the right then was vested, they 
might then find the key to unlock the constitution, so as to find the 
power to pass an alien law. If congress had not the right, the states 
20 



154 

must have a paramount right to protect aliens. If congress had it 
not, the states could suffer aliens to remain within them, in despite of 
congress. Could the states then confer a perfect right on aliens? If 
they could not, they had no power to keep them here. For, if they 
could keep them here one hour, they might keep them here until 
1808. But, Mr. Cowan said he would attempt to show that the states 
had no such right. He hoped gentlemen would answer him on that 
point. A state could confer a perfect right only in two ways : First, 
by naturalization ; but this subject was conveyed to congress. Se- 
condly, by treaty with the state from which the alien comes ; but, this 
power, too, was vested in congress, and prohibited to the states. 
Could an act of assembly confer a perfect right? No; because, "a 
perfect right being that to which is joined the right of constraining 
those who refuse to fulfil the obligation resulting from it." An alien 
could not oblige a compliance with the terms of it. It had been said 
that the alien law violated that part of the constitution which gives 
the state a right to exclude aliens, if it thinks proper. But, if the 
state could not give the right to them to remain, it must be with con- 
gress, and therefore no violation. By the constitution, a power was 
given to congress to repel and to protect against invasion, and to make 
any law to carry its measures into effect. What could be the mean- 
ing, then, of those clauses 1 The terms to repel invasion, and protect 
against invasion, gave different powers. Could it be thought proper, 
that the general government should have no power to defeat a plan 
before it was matured, It must be inferred, then, from such words, 
that congress had the power to take such measures as would secure 
the people. There was no necessity, then, of resorting to the last 
clause of the eighth section of the first article, for the power in ques- 
tion. The general powers of congress would be sufficient to give it. 
When bound to accomplish an end, are not, said he, the means in- 
cluded ? Or are they withheld ? But, if the state had no such power, 
it was in congress. For, if it was not there, where was it? Thus 
much, Mr. Cowan said, for the constitutionality of the alien law. He 
proceeded next to discuss its nature. It had been said, that it blended 
different powers. But, Mr. Cowan said, that the constitution of the 
United States, in his opinion, was not such an one as that the powers 
of government were necessarily kept separate and distinct. It was 
true they were so in the state constitution, but that they are not so in 
the former, was proved by the instance of the president's ratifying a 
treaty. For, as the treaty when made, becomes a law, his ratification 
has the effect of a legislative act. He must often act with an union 
of powers. By approving laws, particularly, he legislates ; and in 
cases where no person is pointed out by a law to enforce its execu- 
tion, the president perhaps is the proper person to do it. This is 
proved by that clause in the constitution which directs, that the pre- 
sident shall take care that the laws be faithfully executed. There- 
fore, even if the president had not been named to carry the alien law 
into effect, by the constitution, he must have done it so far as was ex- 
ecutive. Two powers, then, are united by the constitution in him. 

Mr. Cowan then observed, that if the committee could be convinced 
that the law was constitutional, they certainly must conceive the wis- 



155 

dom of congress adequate to the policy of such a law. The alien 
enemy laws passed by the legislature of this state, and also by the con- 
gress of the United States, had been admitted by the gentleman from 
Caroline to be necessary. He (Mr. Coivan,) considered that law of 
congress as being very analogous to the law now the subject of de- 
bate. For, if such enemy alien law be necessary in a state of war, 
the law of congress now under the consideration of the committee, 
under defensive operations, was necessary in proportion. It had been 
urged too, that aliens, by the law of nations, had the same rights as 
citizens. But that the alien was so entitled, he said, was necessary 
to be shown. There certainly was a distinction between the alien 
and citizen. An alien is not subject to all the laws of a country, but 
such only as regulated the affairs of private life. Mr. Cowan then 
read the seventh amendment to the constitution, containing the prin- 
ciples and regulations which were to govern in criminal cases. Gen- 
tlemen had derived rights to aliens under this clause, and seemed to 
rely much upon the word persons used in this clause. But he (Mr. 
Cowan,) asserted that aliens were entitled to their privileges from a 
principle of the law of nations, and not under the constitution, as a 
party thereto. For the alien could not be made a soldier, he owing alle- 
giance elsewhere. The expressions too, used in the seventh amend- 
ment, " except in cases arising in the land or naval forces, or in the 
mil ilia when in actual service in time of war or public danger," 
prove that aliens were not the persons contemplated by that clause, 
but citizens, they only being subject to those kinds of service. In- 
deed, an Indian or a negro might, by such doctrine as gentlemen 
held, be as well entitled as an alien. But none of these were parties 
to the constitution. Gentlemen who argued thus, would prove too 
much for an alien. They would place him in a better situation than 
our own citizens. It had been said banishment is a crime. But 
banishment of a citizen, said Mr. Cowan, exists not under the con- 
stitution. He said, also, that an alien on coming into, admitted the 
right of sovereignty of the country over him. This was the condition 
of his admission into every country : to illustrate which, he repeated 
the observations which he had before made upon that point. He also 
recapitulated his preceding arguments about perfect right, and then 
observed that it had been said that this assembly ought to adopt the 
resolutions before them, and not use force ; but by means of them, 
produce an effect on the general government. And it was further 
said that the compact was between states. But, Mr. Cowan said, he 
could not agree with gentlemen in these points. What effect could 
the resolutions have? It ought to be supposed that congress had wis- 
dom : that, if they thought they were right they would not recede. 
If they thought they were wrong, he believed they would endeavor to 
do what was right. He thought too, that the compact contained an 
union both of the states and people. What, said he, would be the 
effect of declaring the laws null and void ? The principle would ex- 
tend to all laws of congress whatever. What then would be the re- 
sult? It would shake the foundations of tranquillity. It would shake 
the faith of the people in their government, as well as the faith of fo- 
reign nations in it. It would be setting up powers paramount to the 



156 

government. Because a few of the people had directed them to act 
upon the subject, could they think they had the power 1 Had the peo- 
ple empowered them to declare the laws null and void 1 On the con- 
trary, if the people on their return should hold a different language, 
how could the members of this house justify themselves to the peo- 
ple 1 Would it be by telling them that they, their representatives, had 
all powers 1 He again stated the consequence of exercising such a 
power. And if the compact were to be dissolved, he asked, what 
would be the consequences ? The resolutions would give a pause to 
the acts under consideration. For they recommended to the people 
to obey or not obey. And if without power from the people, this as- 
sembly should attempt to exercise their rights to control the general 
government, he asked what would be the consequences'? He enume- 
rated them much at large, and concluded with an earnest request that 
they would not adopt the mode proposed by the resolutions. 

On motion, the committee then rose, the chairman reported pro- 
gress, asked, and had leave for the committee to sit again. 



IN THE HOUSE OF DELEGATES, 

Thursday, December 20, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

General LEE arose, and said that he was sorry he had been pre- 
vented from attending his duty in the house earlier in the session. 
He had thereby lost the opportunity of combating the pernicious sys- 
tem in operation at its commencement, as well as that of obtaining 
the information which previous discussion must have afforded. Dis- 
advantageous^, however, as he felt himself situated, he could not re- 
frain from presenting to the committee those reasons which influenced 
him in opposing the resolutions. There were, he believed, three pro- 
positions on the table: the resolutions proffered by the worthy mem- 
ber from Caroline : counter resolutions proposed by his worthy friend 
from Prince George, and a resolution proposed by a worthy member 
from Prince William. To the counter resolutions he gave his cordial 
assent : To the last proposition he also assented, as it breathed a 
spirit congenial to true American policy, and afforded an innocent 
way of disposing of the resolutions from Caroline. But inasmuch as 
the rejection of the first resolutions would necessarily involve the ap- 
probation of those proposed in opposition, he should apply his obser- 
vations to effect that object only. 

General Lee then contended, that the ruling principle in the resolu- 
tions was erroneous. They asserted as a fundamental position, that 
the existing constitution was a compact of states. He denied this po- 



157 

sition : declaring the constitution to be a compact among the people. 
The ancient confederation was a compact among the states : it was so 
in style, manner and power. But the government under which we 
now live, was precisely the reverse. What is its style 1 " We the 
people." What is its manner ? Executed by functionaries appointed 
mediately or immediately by the people. What is its power 1 That 
of the people : derived from them, and based upon them. How then 
could it be asserted that the present constitution is a compact of states? 
And would the committee sanction by their approbation, a declaration 
palpably wrong ? It was true, there was to be drawn from the consti- 
tution some faint support for this erroneous construction. The senate, 
one branch of the federal government, was elected by the states, as 
states. This deviation from the general system could not be relied on 
to destroy the system itself. It was the result of our peculiar situation. 
The smaller states could not be induced to renounce their existing 
equality entirely. It was necessary to compromise, in order to obtain 
the happy constitution we possess. 

To this compromise was attributed the federal feature just men- 
tioned. But this partial departure from the general principles of the 
system, could not be regarded as covering the broad ground taken in 
the resolutions. All the branches of government ought to be elected 
by the states, as states, to maintain the position assumed. 

This was not the case, and consequently the resolutions were radi- 
cally erroneous. 

General Lee then proceeded to the examination of the alien and 
sedition laws. He began with the alien law, which he contended was 
not a breach of the constitution. If the law was unconstitutional, he 
admitted the right of interposition on the part of the general assem- 
bly; nay, it was their duty: and every good citizen was bound to up- 
hold them, in fair and friendly exertions, to correct an injury so seri- 
ous and pernicious. He would himself cordially contribute his hum- 
ble mite ; but even in that case, he should adopt a very different man- 
ner from that contained in the resolutions. Friendship should be the 
ground, friendship the dress, and friendship the end of his measures. 
The resolutions inspired hostility, and squinted at disunion. 

The objections made to the alien law were : 1st. It transcends the 
power of congress. 2dly. It violates that article of the constitution 
which leaves to the states the right of admission of emigrants. 3dly. 
It deprives an alien friend of trial by jury. 4th. It unites legislative, 
executive and judicial powers. To the two last, he said, he should 
particularly attend, as gentlemen preceding him had, he understood, 
fully noticed the two first. General Lee read some passages from the 
law, tending to show that the prevention of commission of crime, and 
not the punishment of a crime committed, was its only object. 

He then proceeded to show that trial by jury could only apply on 
charge of crime committed. It was ludicrous to attempt to apply it 
in the alien law ; and it was consequently absurd to stigmatize that 
law, and those who framed it, with violation of the constitution, by 
denial of trial by jury, where trial by jury could not possibly apply. 
The law was in its nature preventive, and sprung from the right of 
duty of government to protect the states from invasion. The exercise 




158 

of this right belonged to congress, and they were the sole judges of 
the expediency. In their decision all ought to acquiesce. In case of 
error or vice, the revolving elections presented a proper corrective, 
which could be applied to without commotion or disturbance ; and 
which, fairly and judiciously applied, could not fail to cleanse the body 
politic. 

During the debate, it had been well observed by the worthy mem- 
ber from Lunenburg, that the injustice of France might be considered 
as the root of these measures, and that it was not easy to discuss the 
latter, without reference to the former. This remark was certainly 
true, and must have been felt by every gentleman engaged in the dis- 
cussion. In case of an invasion, a measure dependent only on its 
practicability, of which practicability our venomous and insatiable foe 
was the sole judge, what keen and operative aid might not be afforded 
by the numerous aliens, long fostered by American hospitality, and 
anxious for an opportunity to display their ingratitude, if we might be 
permitted to form an opinion of their future conduct by the zeal with 
which they laboured to expel from the breasts of our citizens, all re- 
spect for religion and government ; preparing, as far as was in their 
power, the American people for the re-action of the French and Saint 
Domingo tragedies. 

Ought not then congress to have taken measures to rid their coun- 
try of such eventual misery ? It was their first duty so to do ; and 
supineness on their parts would have been criminal. 

But it seems that aliens have rights under our constitution. It was 
wonderfully kind, he said, in our fathers to devote their time and mo- 
ney to the care of the Turk, Gaul, and Indian, when the proper ob- 
ject was that of their children. This spurious doctrine, however con- 
fidently asserted, was not credited by the gentlemen themselves. They 
might impose on others, but the discernment of their own minds for- 
bade success in imposing on themselves. An alien would claim no 
right in this country, unless he could show a treaty for it ; excepting 
his participation in the usual rights of citizens, which he held upon 
courtesy, and which courtesy could be withdrawn at the pleasure of 
the sovereign power. Be done then, he said, with all these pretences. 
They were groundless, and seized only to excite more and more the 
begun ferment. 

The sedition law, general Lee said, was also declared to be a viola- 
tion of the constitution. Let us, said he, examine it. Let us refer 
to the clause in the constitution securing the freedom of the press, 
which we are told by the above law is abridged. By the law you must 
conspire to oppose a measure of government ; or utter, write or pub- 
lish, with the intention of opposing, or exciting opposition to govern- 
ment. The publication must also be false, malicious and scandalous. 

General Lee then asked, if government was worth preserving? If 
not, let it be annulled. If it was, deny not to it, he said, the means 
of preserving itself. The constitution must be very defective, if it 
held not the power of self-preservation. It was not defective ; and a 
fair construction of it would warrant the sedition law. Government 
with us depended for its existence upon the affections of the people. 
In its preservation the people were interested. Any attempt, by the 



159 

publication of falsehood to discredit government, and thereby to im- 
pair the public confidence in it, was an offence against the people ; it 
was wrong in morality, and ought to be punished. What honest man 
would complain of a law, which forbids the propagation of malice, 
slander and falsehood ? What good citizen would not delight in a 
law, which, while it punishes the above vices, tends to perpetuate the 
government of his choice? And yet a law of that sort, he said, af- 
forded a fertile topic of abuse and misrepresentation. 

General Lee then observed that, " thou shalt not lie, 55 was one of 
the ten commandments : it was one of the injunctions of the sedition 
law. Whoever considered the freedom of speech abridged by the di- 
vine law 1 No man unless lunatic ; nor could the freedom of the press 
be so deemed, without a misconstruction of the constitution, or of the 
sedition law. 

This state, he said, had from the revolution enacted laws of the 
same sort. In 1776, a committee was appointed for the revision of 
our laws. Messieurs Pendleton, Wythe, Jefferson, Mason and Lee, 
composed the committee ; able, honourable and eminent citizens. 
Among their proposed bills, was to be found one on the subject of li- 
bels. A reference to this bill would show its minute resemblance to 
the sedition law. Authority such as that just quoted, general Lee 
said, could not fail in guarding the committee from accrediting the 
intemperate censures issued against congress. He would proceed, he 
said, to another authority in point of time and subject, though one of 
the respectable gentlemen just named, and the very one of all others 
to whom gentlemen on the other side attached most weight. Mr. 
Jefferson, in his correspondence with Mr. Madison, respecting the new 
constitution, maintains, said general Lee, the doctrine we contend for. 
He (Mr. Jefferson) expressly says, that in preventing the abridgement 
of the freedom of the press, punishment for uttering falsehoods ought 
not to be inhibited. The same doctrine is expressed by the same gen- 
tleman in his Notes on Virginia. 

However, general Lee said, he would refer to an authority still 
higher, the general assembly of this state in 1776. That august body, 
the champions of American rights, the patriots who composed our 
state constitution, passed a law on this subject in the following words : 
" That, if any person residing, or being within this commonwealth 
shall, from and after the publication hereof, by any word, open deed, 
or act, advisedly and willingly, maintain and defend the authority, ju- 
risdiction, or power of the king, or parliament of Great Britain, the 
person so offending, being legally convicted thereof, shall be punished 
with fine and imprisonment, to be ascertained by a jury, so that the 
fine exceed not the sum of twenty thousand pounds, nor the imprison- 
ment the term of five years : 55 " and that any person who shall mali- 
ciously and advisedly endeavour to excite the people to resist the go- 
vernment of this commonwealth as by law established, or persuade 
them to return to a dependence upon the crown of Great Britain, or 
who shall maliciously, or advisedly terrify and discourage the people 
from enlisting into the service of the commonwealth, or dispose them 
to favor the enemy, every person so offending, and being thereof legally 
convicted, shall be punished with fine and imprisonment as aforesaid. 55 



160 

These men, general Lee said, formed our constitution, and these 
men passed the law of which the quotation is an extract. They must 
have understood their own work : they could not mean to violate the 
constitution. The law then was not unconstitutional in their opinions, 
and yet it must be so, if the doctrine now advanced be accurate. 

The constitution of the state and of the United States, provide in 
terms equally strong for the security of the freedom of the press. 
The law above quoted, passed by the state, and the sedition law, 
passed by congress, were of the same sort in word, spirit and object. 
If the first be no violation of the state constitution, the second could 
not be deemed a violation of the United States constitution. Other 
laws passed by the state, all tending to justify the opinions which he 
and those who thought with him held, general Lee said, might be re- 
ferred to ; especially the law against the divulgers of false news and 
the law against treason. It had been fully observed by the worthy 
member from Prince George, that the word " freedom" of the press 
had a definite meaning ; and he had proved incontestibly what this 
technical meaning was, to wit, a freedom from every restraint in print- 
ing, but not a freedom from punishment, if the printing was in its 
tendency injurious to an individual or to the community. 

It appeared plainly to his mind then, that the resolutions asserted 
an untruth, when they charged the two laws with violation of the 
constitution. But it seems, said he, that the laws are inexpedient and 
unwise. Of their expediency and wisdom the people have made con- 
gress the sole judge. They have the best information : their object 
must be the public good, and it was presumable that the measure was 
wise and necessary, or their adoption would not have taken place. 
He would not, he said, examine the question of expediency of the 
laws, but would examine the expediency of the resolutions. Admit- 
ting for a moment that the laws were unconstitutional, he con- 
tended that the course pursued by the resolutions was inadmissible. 
Prudence frowned on the indecorum and hostility which their face 
showed, nor was it to be presumed that contumely to the sovereignty 
of the union was the likeliest way to obtain a repeal of the laws. 
The very reverse must happen. Why then recur to such an expe- 
dient, if the object of repeal be the real object? He hoped that 
he should be pardoned, he said, when he suspected that repeal of the 
laws was not the leading point in view. Promotion of disunion and 
separation of the states, struck him as objects which the resolutions 
covered. What evils so great could befall the American people? 
Every measure squinting at such disasters ought to be spurned with 
zeal. Let us, then, said he, put our veto on the resolutions. Was 
an individual, he observed, to apply to his friend for redress of some 
supposed injury, the application would be conveyed in terms polite 
and friendly. So ought it to be when a state applied to the United 
States. But why not wait for the operation of the constitutional 
checks? The united system was made by the whole people, for the 
management of all affairs national. The same people instituted 
state governments, for the management of all state affairs. These 
systems held concurring jurisdiction over some subjects, and of course 
might occasionally interfere. Who then was the proper arbiter be- 



161 

tween them? Not the state government : the people had given them 
no such power. The people themselves, the creators of both systems, 
were the proper judge. Their decision was obtainable under the 
rules of the constitution in the revolving elections. The judiciary 
also was a source of correction of legislative evil ; a source fixed by 
the constitution, and adequate to cure violations of the same like those 
now alleged. The state legislatures might also act, but it must be by 
proposing amendments to the constitution in either way therein de- 
lineated. V 

If then the laws were deemed unconstitutional, let the question, he 
said, be left to the people, to the judges : or let the legislature come 
forward with a proposition for amending the doubtful parts of the con- ") 
stitution ; or with a respectful and friendly memorial, urging congress 
to repeal the laws. Thus would our union be strengthened, our 
friendship perpetuated. / 

The state judges, he said, had on many occasions interposed when 
• this legislature had passed laws unconstitutional. The remedy had 
cured the disorder, and tranquillity remained undisturbed. So would 
do the federal judges. They were as respectable, as trust-worthy as 
were the state judges: in them as much confidence ought to be re- 
posed. For his part, he said, he felt as much confidence ; nor could 
he admit the force of those distinctions which gentlemen labored to 
establish, tending to discriminate in favor of state judges and state 
officers. They were all citizens alike, bound to do their duty ; 
clothed with the authority of the people, and directed by the will of 
the people. Whether called state or federal judges, sheriff or mar- 
shal, was a light and unimportant circumstance. 

The resolutions, general Lee said, struck him as recommending re- 
sistance. They declared the laws null and void. Our citizens thus 
thinking, would disobey the laws. This disobedience would be pa- 
tronised by the state, and could not be submitted to by the United 
States. Insurrection would be the consequence. We have had one 
insurrection lately, and that without the patronage of the legislature. 
How much more likely might an insurrection happen, which seemed 
to be advised by the assembly ? The scene in Pennsylvania turned out 
to be a comedy : the same attempt here, he feared, would issue in 
tragedy. Let us, said he, avoid these numerous ills. All the states 
are interested in our decision, both as to their reputation and tran- 
quillity. He requested gentlemen then to be temperate, to reject the 
proffered paper, and adopt some other course. 

Division among ourselves at this time, he said, encouraged invasion. 
He could not bring himself to believe that gentlemen meant to invite 
the enemy to our country. He could not attribute to gentlemen such 
motives. But what signified the goodness of their intentions, if their 
measures produced the effect 1 

General Lee then concluded by intreating gentlemen to pause. 
Take this one rash step, said he, and you will be carried step by step 
till you land in misery, or submit quietly with derision settled upon 
your heads. Should my efforts, Mr. Chairman, be unavailing, I shall 
lament my country's fate, and acquiesce in my country's will ; and 
21 



162 

amidst the surrounding calamities, derive some consolation from re- 
collecting my humble exertions to stop the mad career. 

Mr. CURETON said, that there had been silence in the commit- 
tee for some time ; and if no other gentleman was disposed to speak, 
he hoped the question would then be put. The debate had engaged 
their attention for several days past, and he expected that every mem- 
ber of the committee had made up his mind upon the question. 

Mr. John Taylor's resolutions were read by the clerk. 

Mr. PETER JOHNSTON then arose, and acknowledged his in- 
competency to throw any light upon the subject, but hoped to be in- 
dulged with a few observations in answer to the gentleman from West- 
moreland. He had contended that the states were not parties to the 
compact, but the people. Mr. Johnston denied the position, and said 
that every fact in the history of the government would contradict it. 
If the confederation was formed by states, the states alone possessed 
the power of dissolving it. And when it was found incompetent the 
States, and not the people, directed a convention to frame the consti- 
tution. W-hen that was framed, their power was at an end. The 
members of it, it was true, were the representatives of the mass of 
the people of America. But when the system was framed, it was 
submitted to the conventions of the people of the several states. If 
those conventons then, assembled under the auspices of the legisla- 
tures of the different states, the states were parties. Should the 
words, " we the people," then change the nature of the compact, con- 
trary to the historical facts of the day? He thought not. 

Mr. Johnston then cited the fourth section of the fourth article of 
the constitution, which declares, " that the United States shall gua- 
rantee to every state in this union a republican form of government, 
&c^> Also the fifth article, which declares, that "the congress, 
whenever two thirds of both houses shall deem it necessary, shall pro- 
pose amendments to this constitution, or on the application of the 
legislatures of two thirds of the several states, shall call a convention 
for proposing amendments, which in either case shall be valid to all 
intents and purposes, as part of this constitution, when ratified by the 
legislatures of three fourths of the several states, or by conventions of 
three fourths thereof, as the one or the other mode of ratification may 
be proposed by the congress, &,c." From these clauses, he conceived, 
an irrefragable argument was deducible in favor of his idea. It had 
been said, however, that from the expression conventions, in this arti- 
cle, the states were not parties. Mr. Johnston contended that they 
were, as the other expressions in this article were as strongly in favor 
of the states being parties, as the word conventions could be in favor 
of the people being parties. The truth was, that both the states and 
the people were parties. 

He then made several observations in answer to general Lee's argu- 
ment upon the matter of compromise between the states. This gen- 
tleman too, he said, had asserted that the alien law extended to pre- 
vent offences, and not to punish them. This Mr. Johnston denied, 
and proceeded to point out the real case of the alien under the law of 



163 

congress. He understood the law was designed for alien friends. 
There was also an alien enemy law ; and if the former related to 
alien enemies, it would have had reference to the latter. But it was 
general ; it related therefore to both. He mentioned the argument 
of general Lee respecting the entry of aliens into a country, but ob- 
served that this point had before been spoken to. 

Mr. Johnston also referred to the remarks of Mr. George K. Tay- 
lor upon the rights of aliens, and contended that an alien was entitled 
to justice. If so, he was entitled to the means of obtaining justice, 
to which a fair trial was indispensable, but was deprived of it by this 
law. It was in vain to say, that the president would not abuse the 
power. If it was not warrantable by the constitution, it was still ob- 
jectionable. It had been said too, that citizens might live in peace 
notwithstanding the law. That neither was any argument, if the 
law was unconstitutional. The gentleman from Westmoreland had 
placed a particular construction on the word persons. In doing that, 
the gentleman should have recollected the case of a certain descrip- 
tion of persons excluded by the laws of this state from entering the 
same. The same gentleman had read extracts too from the sedition 
law, to show that there must be intent and purpose, in order to bring 
men within the law. Mr. Johnston asked, how intent and purpose 
were to be made out, but by words'? To illustrate which, he men- 
tioned Lyon's case; and then asked, how an intent could be proved, 
but by deductions from words? Was that any security ? An evil in- 
tent might be deduced from words, by which none was ever designed. 
He mentioned as an instance, the story lately circulated amongst them 
respecting Mr. Tazewell, our senator. It would be moreover in the 
power of the tools of government to place a construction on words, 
which might destroy the person speaking them. The gentleman from 
Westmoreland had also read extracts from the law of the state re- 
specting aliens, and insisted that congress had the same right as the 
state to pass such a law. This Mr. Johnston denied, and contended, \^f 
that the states in that respect had sovereign power, and that congress ^ 
had no such power, but a denned and limited power only. To prove 
which, he read the first clause of the ninth section of the first article, 
in the following words : " The migration or importation of such per- 
sons as any of the states now existing shall think proper to admit, 
shall not be prohibited prior to the year 1808, &c. ;" and then asked, 
if any law having that effect had been passed before the adoption 
of the constitution? There had not; therefore such clause was in- 
serted. Mr. Jefferson's letter too had been produced, but was that to 
be quoted to govern the committee on the occasion? The constitu- 
tion should be their guide. And even Mr. Jefferson's letter, as it was 
stated, did not extend to the business in question ; it related only to 
private regulations. 

Mr. Johnston then proceeded to consider the consequences of the 
sedition law; and among others, conceived that the public opinion, 
heretofore found so useful, would be repressed, would be punished 
by it. Was that the liberty, which was guaranteed by the constitu- 
tion ? No ; it was a shameful attack upon both. All the gentlemen 
who had spoken upon this question, (except the gentleman from Caro- 



164 

line,) instead of arguing the constitutional point, had addressed them- 
selves to the passions. He then asked, what would be the conse- 
quence, if responsibility was taken from public servants? The style 
of the resolutions too had been complained of. But, whether the 
laws were said by the committee to be null and void or not, was a 
matter he thought of little consequence. For, if they were unconsti- 
tutional, they of course were null and void. He justified the mode 
of communication which the resolutions proposed. The people might 
petition if they thought proper. But the state, when addressing its 
own servants, ought to act as the resolutions proposed. It had a right 
to instruct its senators, and the people their representatives. Howe- 
ver, Mr. Johnston said, as the subject was exhausted, he would be 
satisfied with the remarks he had made, 

Mr. CURETON arose next, and proceeded to deliver his opinion 
in respect to the powers of the general government and the state go- 
vernments. How were their powers derived? From the people. The 
convention that framed the constitution was called by the states. The 
constitution when framed was submitted to the people, who by conven- 
tion ratified it. He asked, what would be the consequence of an opi- 
nion that the states had the balance of power alone? What was it? 
One sixteenth part only. He considered that the people had powers ; 
and contended, that they had the only right to act upon the sedition 
law. And if congress had usurped a power, which should appear to 
be an innovation on their rights, they would have the power in March 
next to make an example of those who had trampled on those rights; 
and this mode of proceeding was consistent with the constitution. He 
then asked, why did the resolutions embrace both laws? He also made 
several observations respecting the power of passing such a law as the 
alien law. He agreed with the gentleman from Lunenburg, that the 
power properly belonged to congress ; and asked, how could aliens 
dangerous to the country be sent out of it, if the power was not vested 
in the president. 

Mr. Cureton then proceeded to answer the objections of gentlemen 
in respect to the corruption of the officers of the general government; 
and hoped, that they should be confined to the constitutionality of the 
laws: but he still contended, that the people had the only right to act 
upon the sedition law. The states never had the power alone ; there- 
fore it could not be reserved. It belonged to congress, who were un- 
der the correction of the people only. As far as the resolutions rela- 
ted to the alien law, he had no objection, he said, to do what was pro- 
per : for instance, if it should appear that the law was an infringe- 
ment on the state government, to recommend it to our senators in 
congress to endeavour to have the same repealed ; for that was sanc- 
tioned by precedent. But the plan of the resolutions, Mr. Cureton 
said, was a new one. He looked upon it as an innovation on the 
rights of the people, and stabbing fundamental principles. He con- 
cluded, by hoping therefore that the resolutions would not be agreed to. 

Mr. JOHN TAYLOR arose next, and observed, that though it 
was late, and the debates had been protracted to great length, he 



165 

hoped the importance of the subject would be considered as a justifi- 
cation for his replying to the extraordinary and dangerous arguments 
which had been urged in opposition to the resolutions he had intro- 
duced. 

A member of Lunenburg had even asserted them to be an act of 
perfidiousness to the people ; because, by undertaking to declare one 
law of congress unconstitutional, the legislature would assume a power 
of declaring all their laws unconstitutional. Let the proposition then 
be reversed, to discover if there be perfidiousness in the case, the side 
to which it attached. Would it be said, that the legislature could not 
declare this law of congress unconstitutional, because it could declare 
no law of congress unconstitutional 1 Admitting such a position, did 
not these consequences evidently follow, that the check meditated 
against congress in the existence of the state governments, was de- 
molished. That congress might at its pleasure violate the constitu- 
tional rights of these governments. That they must instantly become 
dependent, and be finally annihilated. Could it be perfidious to pre- 
serve the freedom of religion, of speech, of the press, and even the 
right of petitioning for a redress of grievances? Gentlemen, in de- 
fining the laws of congress, had taken their stand upon this broad 
principle, namely, " That every government inherently possesses the 
powers necessary for its own preservation." Apply this principle to 
the state governments : for, if it be a sound one, they are equally en- 
titled to the benefit of it, with the general government. Under this 
principle then, to which his adversary had resorted, and which he 
therefore could not deny, it followed that the state governments have 
a right to withstand such unconstitutional laws of congress, as may 
tend to their destruction, because such " a power is necessary for their 
preservation." To illustrate this, suppose congress should be of opi- 
nion, that an arrangement of men into different ranks would tend to 
the order of society, and should, as preparatory to this end, intermed- 
dle with inheritances, and re-establish primogeniture. It could be 
only urged against such a law, that it was unconstitutional ; but if the 
state could not declare any law of congress unconstitutional and void, 
even such an one as this must be submitted to, and of course all 
powers whatsoever would gradually be absorbed by, and consolidated 
in, the general government. 

He observed, that the right of the state to contest the constitution- 
ality of a law of congress could, however, be defended upon better 
ground, than by the re-action of the doctrines of gentlemen on them- 
selves. That a principle literally constitutional, theoretically sound, 
and practically useful, could be advanced, on which to rest it. It was 
this : the people and the states could only have intended to invest con- 
gress with a power to legislate constitutionally, and the constitution 
expressly retains to the people and the states, every power not surren- 
dered. If therefore congress should, as was certainly possible, legis- 
late unconstitutionally, it was evident that in theory they have done 
wrong, and it only remained to consider whether the constitution is 
so defective as to have established limitations and reservations, with- 
out the means of enforcing them, in a mode, by which they could be 
made practically useful. Suppose a clashing of opinion should exist 



166 

between congress and the states, respecting the true limits of their 
constitutional territories, it was easy to see, that if the right of deci- 
sion had been vested in either party, that party, deciding in the spirit 
and interest of party, would inevitably have swallowed up the other. 
The constitution must not only have foreseen the possibility of such a 
clashing, but also the consequence of a preference on either side as 
to its construction. And out of this foresight must have arisen the 
fifth article, by which two thirds of congress may call upon the states 
for an explanation of any such controversy as the present, by way of 
amendment to the constitution ; and thus correct an erroneous con- 
struction of its own acts, by a minority of the states ; whilst two thirds 
of the states are also allowed to compel congress to call a convention, 
in case so many should think an amendment necessary for the purpose 
of checking the unconstitutional acts of that body. Thus, so far as 
congress may have the power, it might exe,rt it to check the usurpa- 
tions of a state, and so far as the states may possess it, an union of 
two thirds in one opinion might effectually check the usurpations of 
congress. And, under this article of the constitution, the incontro- 
vertible principle before stated, might become practically useful ; other- 
wise no remedy did exist for the only case which could possibly de- 
stroy the constitution, namely, an encroachment by congress, or the 
states, upon the rights of the other. The case was even strongest in 
favor of a check in the hands of the states upon congress : for although 
congress could never alter or amend the constitution, without the con- 
currence of three fourths of the states ; yet such a concurrence would 
be able so to alter or amend it, as to check the encroachments of con- 
gress, although the whole of that body should disagree thereto. The 
reason for this will exhibit the unconstitutionality of the argument, 
which supposes, that the states hold their constitutional rights by the 
courtesy of congress. It was this : congress is the creature of the 
states and of the people ; but neither the states nor the people are the 
creatures of congress. It would be evidently absurd, that the crea- 
ture should exclusively construe the instrument of its own existence ; 
and therefore this construction was reserved indiscriminately to one 
or the other of those powers, of which congress was the joint work ; 
namely, to the people, whenever a convention was resorted to, or to the 
states, whenever the operation should be carried on by three fourths. 
Mr. Taylor then proceeded to apply these observations to the threats 
of war, and the apprehension of civil commotion, towards which the 
resolutions were said to have a tendency. Are the republicans, said 
he, possessed of fleets and armies'? If not, to what could they appeal 
for defence and support? To nothing, except public opinion. If 
that should be against them, they must yield; if for them, did gentle- 
men mean to say, that public will should be assailed by force 1 If so, 
should a minority, by the help of the powers of government, resort to 
force for its defence against public opinion ; and against a state which 
was pursuing the only possible and ordinary mode of ascertaining the 
opinion of two thirds of the states, by declaring its own and asking 
theirs? How could the fifth article of the constitution be brought 
into practical use, even upon the most flagrant usurpations ? War or 
insurrection therefore, could not happen, except congress should at- 



167 

tempt to control public opinion by force ; and this it could not be sup- 
posed they would ever do, not only because the will of the people is 
the sovereign in all republics; but also, because both that will and the 
will of the states, were made the constitutional referee in the case 
under consideration. Hence a movement towards this referee could 
never be admitted as leading to war or commotion, except in those 
countries where an armed and corrupt minority had usurped the go- 
vernment, and would of course behold with abhorrence an arbitra- 
ment of a majority. Such however he hoped would be the respect to 
public opinion, that he doubted not but that the two reprobated laws 
would be sacrificed, to quiet the apprehensions even of a single state, 
without the necessity of a convention, or a mandate from three fourths 
of the states, whenever it shall be admitted, that the quiet and happi- 
ness of the people is the true end and design of government. 

With respect, he said, to the remedy proposed in the talents and 
integrity of the continental judges, without regarding the prejudices 
which might probably exist in favor of the government, from which an 
appointment should flow, it might be remarked, that the judges by the 
constitution are not made its exclusive guardians. That if continen- 
tal judges were the proper referees as to the constitutionality of con- 
tinental laws, state judges were the proper referees as to the constitu- 
tionality of state laws ; that neither possessed a power over the other, 
whence a clashing of adjudication might ensue ; and that if either 
had been superior, the same consequences would result as would flow 
from a superiority of congress, or of the states over the other, with 
this additional aggravation, that the* people could not by their elec- 
tions influence a constitutional question, to be decided by the judges, 
as they could to a certain extent, when it was to be decided by a ge- 
neral or slate legislature: an influence however insufficient; because 
it would require six years to change the senate of the United States, 
and four that of Virginia, during which an unconstitutional law would 
have done its mischief, which was yet greatly preferable to no influence 
at all. 

He observed, that the resolutions had been objected to as being 
couched in language too strong and offensive, whilst it had also been 
said on the same side, that if the laws were unconstitutional, the peo- 
ple ought to fly to arms, and resist them. To this, he replied, that he 
was not surprised to hear the enemies of the resolutions recommend- 
ing measures which were either feeble or rash. Timidity, it was 
known, only served to invite a repetition of injury, whilst an uncon- 
stitutional resort to arms, would not only justly exasperate all good 
men, but invite those who differed from the friends to the resolutions, 
to the same appeal, and produce a civil war. Hence those who wished 
to preserve the peace, as well as the constitution, had rejected both 
alternatives, and chosen the middle way. They had uttered what they 
conceived to be truth, in firm yet decent language ; and they had pur- 
sued a system which was only an appeal to public opinion, because 
that appeal was warranted by the constitution, and by principle : and 
because it gave an opportunity to the general government to discover 
whether they would be faithful to the same principle, and thereby es- 
tablish a precedent, which would both now and hereafter have a strong 



168 

tendency against civil war. That this firmness, which was both ex- 
hibited and felt, was really necessary as an act of friendship to the 
general government, if it was true, as some thought, and as the com- 
motion in the public mind plainly indicated, that a farther progress in 
their system was full of danger to itself, and misery to the people. If, 
said he, we beheld our friend already advanced to the brink of a pre- 
cipice, without having discovered it, ought we in friendship slightly to 
admonish him, that the very next step might precipitate him into an 
abyss below ; or strenuously to warn him of his danger 1 Again : If 
a country was to be defended, into which the foe could only enter at 
a single pass, which was fortified and garrisoned, ought the resistance 
of this garrison to be feeble and cowardly, and ought they traitorously 
to surrender this key into their country, from a confidence in the 
enemy ? Liberty was that country — our constitution the fortress — and 
ourselves the garrison. Shall we, he said, desert our post without even 
a parley with the assailants ? If we did, the inevitable consequence 
must be a consolidation of these states into one great sovereignty, 
which will from its vast extent, as inevitably settle with rapidity into 
a monarchy; and like all other great empires it must resort to those 
oppressions to support itself, which make the cup of life bitter to man. 
That such a degree of timidity would be as dishonorable as the vio- 
lent measures which gentlemen on the other side recommended, in 
cases of constitutional infractions, would be immoral and unconstitu- 
tional. 

That firmness as well as moderation could only produce a desirable 
coincidence between the states, an example of which having been al- 
ready set by Kentucky, it behoved us so to act as to avoid a difference 
of opinion as to the mode, when we united in the end ; because divi- 
sions respecting either, would undoubtedly destroy every hope of a 
successful issue. In opposition to the propriety of soliciting this coin- 
cidence, the constitution, prohibiting the states from entering into a 
confederation among themselves, had been quoted. In reply to which, 
he would ask, if an application from one state to another to learn its 
sentiments upon a point relative to the constitution, was to be consi- 
dered as unconstitutional, as amounting to a confederation ? In what 
way could two thirds of the states consult or unite, so as to exercise 
their right of calling a convention under the fifth article, or in what 
way could three fourths ever amend the constitution ? This observa- 
tion evinced the incorrectness of such a construction, as had also the 
practice of the states, in submitting each other's resolutions to mutual 
consideration, in a variety of instances. 

Mr. Taylor then said that the constitutionality of the laws had been 
defended by the common law. It had been said, that the common 
law attaches the rights arising from the law of nations to a sovereignty 
wherever it resides : that therefore a power over aliens devolved under 
the common law upon congress ; and that sedition being also a com- 
mon law offence, they had a right to punish it. If the common law 
bestowed powers upon congress, it was unnecessary to controvert these 
laws, because there was hardly any species of oppression which it 
would not justify. Heresy and witchcraft were common law offences : 
the former was a complete engine for tyranny. But the constitution 



169 

of the union did no where adopt the common law, or refer to it as a 
rule of construction. That as the state constitutions or laws had done 
so under the different forms, it evinced that the states must have con- 
sidered an adoption necessary to give it force, and thinking so, it was 
impossible that the state conventions which assented to the constitu- 
tion, could ever have supposed that they were establishing a govern- 
ment which could at pleasure dip their hands into the inexhaustible 
treasuries of the common law and law of nations, and thence extract 
as much power as they pleased. On the contrary, the constitution of 
the union does in its face plainly erect a government of powers ex- 
pressed and limited, and not left to be new modelled at random, or by 
ambition, by a reference to obsolete or little known codes of law, 
which had never been taken into contemplation during its discussion 
in any state convention. 

Having now gotten rid of objections rather collateral, Mr. Taylor 
said that he would come to those which more immediately referred to 
the objectionable laws. It had been said that aliens had no rights : 
that if they had, such rights were only held by the law of nations, 
which allows them to be removed whenever their residence is thought 
dangerous by the sovereignty ; and assuming it as granted that the 
sovereignty of America is in congress, it was therefore concluded that 
the law was constitutional. 

In reply to this argument, he observed, that congress only possessed 
a special and limited sovereignty, to be exercised in a special and li- 
mitted manner, so as not to conflict with that portion of sovereignty 
retained to the several states, and so as not to violate those constitu- 
tional principles prescribed for the preservation of liberty. That aliens, 
under the law of nations, were entitled and subjected to the sanc- 
tions of municipal law ; and however their rights as foreigners may 
be unimportant to us as natives, yet it was of vast importance that the 
fundamental principles of our municipal law should not be destroyed, 
because an alien only was the present victim, since it established pre- 
cedents, and produced consequences, which would wound citizens 
through the sides of aliens. To apply this general remark, he said, 
the constitution was a sacred portion of municipal law, it had em- 
powered congress " to define and punish offences against the law of 
nations," and it had declared, " that the judicial power shall extend 
to all cases in law and equity arising under this constitution, or the 
laws of the United States ; and that the trial of all crimes shall be by 
jury." The law of nations was therefore in contemplation whilst de- 
fining the judiciary power. If an alien has done wrong, must it not 
be a case in law or equity, or a crime ? At any rate, must it not be 
a case arising under the constitution, or the laics of the union 1 If so, 
his punishment, supposing the act criminal, is to be inflicted by a jury : 
if not criminal, it is yet referred to the judiciary, by the comprehen- 
sive terms " all cases." Might not precedents then, violating these 
essential principles of our municipal law, be dangerous to citizens, 
when it was recollected that no difference is contemplated by the law 
of nations, or that municipal law, between aliens and citizens touching 
these rights, during the residence of the former. Again : were not 
the checks contemplated by the constitution weakened by making a 
22 



170 

president in fact a king of the aliens? Our towns will abound with 
men whose every interest depends upon executive pleasure. Might 
they not be used to influence elections ? And what would prohibit 
their being forced into the volunteer corps, then to be armed and of- 
ficered by the executive? Here then, except for the virtues of* a tem- 
porary chief magistrate, was a mode struck out, by which a large force 
might be embodied and armed, possessing no rights, and completely 
dependent on the will of one man. Was this to adjust the balances? 
Or did it comport with the principles of republicanism ? If not, in 
this mode also might citizens be wounded through the sides of aliens. 

A gentleman from Prince George, he said, had urged, that except 
for this law, the state of Virginia might admit a French army with 
Buonaparte at their head. Of this, he said, there would certainly be 
as little danger, as that under it a president should admit an English 
army. Because, although it was obvious that no nation would call in 
a foreign force to destroy itself, yet history was not deficient in cases 
wherein individuals have resorted to a foreign force to enslave the na- 
tion. That he meant not to insinuate any thing to the injury of the 
present president ; but by retorting the argument, to show its weak- 
ness, by exhibiting the difference between suffering the residence of 
foreigners to depend upon the national legislatures; and surrendering 
it as a great prerogative to one man. 

It had been argued too, that the power given to congress to protect 
each state against invasion, comprised a power of expelling dangerous 
incendiary aliens; for that congress ought to be enabled to nip dan- 
gerous designs in the bud. 

If power could be gotten by inferences as loose as these, all at- 
tempts to limit it might be relinquished. Dangerous designs ought to 
be nipt in the bud. Was it the danger to which the power attached, 
and not the alienage? If so, dangerous incendiary citizens might 
also be nipt in the bud without trial, and exported at executive will. 
The protection of a state against invasion, is imposed upon congress 
as a duty, secondary only to the guarantee of a republican form of 
government, and not bestowed upon them as an enlargement of 
power ; and the reason of it is, that the states are prohibited from 
keeping troops or ships of war in time of peace, which prohibition 
does not extend to the union. Greatly as this argument had been re- 
lied on, the propriety of this construction was evinced by two obser- 
vations; one, that the states might as far as they could protect them- 
selves against invasion, and even raise troops in time of war, proving 
that this was a duty imposed upon congress, and not an executive 
power. The other, that it is also made the duty of congress to pro- 
tect the states against domestic violence, but only on application of 
the state legislature or executive. The jealousy evidently exhibited 
here against the interposition of congress, even in cases of actual do- 
mestic violence, by no means warrants the supposition, that they 
might interpose where apprehensions of danger only existed. Fur- 
ther, if congress obtained the power constructively from that of re- 
pelling invasions, there was nothing to limit its exercise to aliens. 
Again, and again, the committee were told of the common law and 
the sovereignty of congress. An attempt to excite an insurrection 



171 

had been called an offence at common law ; and a power to regulate 
all cases arising under the law of nations, it was said, follows sove- 
reignty. Thus every power was bestowed arising from these copious 
sources. He asked, by what part of the constitution congress were 
empowered to punish all common law offences, and whether that bar- 
barous, feudal, gothic and bloody criminal code was to be let loose 
upon us by inference and implication ? Domestic violence, said he, 
is insurrection. Why was congress specially directed how to act in 
this common law offence, if they had an unlimited power to punish 
all common law offences? As to these rights of sovereignty, it was 
fair reasoning to urge, that a particular donation of a part excluded 
the idea of a donation of the whole by way of inference. If this 
splendid thing called sovereignty had invested congress with all the 
powers arising from the law of nations, why was it necessary particu- 
larly to invest congress with the power of punishing offences against 
the law of nations? And if congress under this sovereignty derived 
to themselves an unlimited power over aliens, how could it have been 
necessary to bestow upon congress the special power of naturalizing 
these very aliens? This doctrine of the rights of sovereignty was as 
dangerous as false. Dangerous, because its extent could be never 
foreseen : false, as violating the idea of limiting a government by 
constitutional rules. From this unlimited source, the British parlia- 
ment derives its claim of unlimited power. King, lords and com- 
mons, because sovereign, may do every thing. If it was admitted 
here, being in fact a common law doctrine, it not only would absorb 
the common law powers and those arising from the laws of nations, 
but also the royal prerogatives, and whatever else it bestows upon the 
British parliament. Such a sovereignty would speedily swallow up the 
state governments, consolidate the union, and terminate in monarchy. 

Mr. Taylor said, that the laws objected to had been largely de- 
fended within and without doors, upon the ground of laws with simi- 
lar provisions having been passed in this state. 

Without stopping, he said, to point out the strong distinguishing 
features between the state laws and those of congress, it would suf- 
fice to show the inefficacy of the argument upon other grounds. 
The powers surrendered to congress and reserved to the states, are 
by the constitution evidently designed to be defined, whether success- 
fully or not, it was yet impossible to deny the intention of that instru- 
ment to concede certain powers to the one, and to reserve certain 
other powers to the other. # If then it was a sound argument to as- 
sert, that congress may legislate upon a subject because a state has al- 
ready done so; that is, that the exercise of the reservation by a state 
shall enlarge the concession in favor of congress, it followed that the 
reservation so soon as it was used was lost, and that even the limita- 
tions upon congressional power ought to be understood as only de- 
signed to extend it. Further, perhaps no state constitution in America 
exhibits that clear and explicit restraint upon a legislative interposi- 
tion respecting the freedom of religion, the press, and petitioning, 
which was to be found among the amendments of the general consti- 
tution. Was it defensible then to assert that congress, though opposed 
by this positive constituent barrier, were yet empowered to legislate 



172 

co-extensively upon these subjects with a particular state having no 
such obstruction to surmount. 

He said that this extravagant and unjustifiable mode of construing 
the constitution had even been carried so far as to quote Blackstone, 
and a private letter of Mr. Jefferson; so that if this instrument was 
to be expounded, not by itself, but by the law of nations, the common 
law of England, the laws of the several states, the opinions of English 
judges, and the private letters of individuals, it had only launched us 
upon the ocean of uncertainty, instead of having conducted us into a 
safe and quiet harbor. That Blachstone's definition of the liberty of 
the press, considered as accurate by the gentleman on the other side, 
amounted to this : " the right of publishing any thing not prohibited 
by law without the necessity of obtaining a previous license" He 
wholly quibbles away the liberty of the press, in the whim of con- 
sidering the necessity of a license as the only mode of destroying it, 
whilst he also admits that government may prohibit it from printing 
whatever it pleases. Was it not obvious that the end meditated by 
the liberty of the press, can as effectually be defeated in one mode as 
the other, and that if a government can by law garble, suppress and 
advance political opinion, public information, this great end, upon 
which public liberty depends, will be completely destroyed. Accord- 
ing to this construction, the constitution of America has only declared 
that congress shall not intercept writings by a previous examination, 
and allowance or rejection ; but that they may make whatever writings 
they please illegal and penal in any extent. Read, said he, the con- 
stitution, and consider if this was all it meant to secure. 

Mr. Jefferson's letter, he said, was written before the amendment 
to the constitution which it recommended; but upon which it could 
not of course be a comment; and therefore this letter, if it had lent 
any aid to the gentlemen on the other side, would be more than ba- 
lanced by that sublime and just construction of the constitution itself, 
as to the liberty of the press, to be found in the negociations of the 
late envoys to France. But this letter, as well as plain legal princi- 
ples, had been egregiously misunderstood, and both upon examina- 
tion, would be found to support the argument against the laws. The 
letter, whilst recommending those securities, for which the amendment 
to the constitution was afterwards designed, urges as an argument, 
that all were legally answerable for false facts published injuring 
others. This is the letter, and this the legal principle upon which a 
common action of slander was grounded : and laws reaching this evil, 
existed before the sedition act, in every part of the union. By a small 
but important deviation both from the letter and the law, a great and 
dangerous delusion was resorted to by the gentlemen on the other 
side. Falsehood, said they, is punishable by law, and Mr. Jefferson 
admits that it ought to be so ; and the sedition law punishing false- 
hood only, both the laws and Mr. Jefferson have united in its approba- 
tion previous to its existence. The great error in this doctrine arose 
from dropping the word " fact," and taking that of " falsehood," which 
includes "opinion," as well as fact. Fact was capable of proof, opi- 
nion was not. To say that such laws as the alien and sedition ex- 
isted, would be to assert a fact, and if he (Mr. Taylor) was prosecu- 



173 

ted for it it might be proved. But to assert that these laws were un- 
constitutional and oppressive, and productive of monarchy, would be 
an opinion, constituting a degree of criminality under the sedition 
law, subjecting a man to punishment, and yet it was not a fact capa- 
ble of being proved. Hence, therefore, the laws of the land, and Mr. 
Jefferson's letter, unite in confining punishment to the publication of 
false facts, and hence opinions were only made punishable in tyranni- 
cal governments; because there was no standard to determine the truth 
or falsehood of opinion. 

But, he said, it had been violently objected that, supposing these 
laws are unconstitutional, the state legislature could have nothing to 
do with the subject ; because the people alone are parties to the com- 
pact, called the constitution of the United States. 

To this objection he answered, that although the framers of the con- 
stitution chose to use the style, " we the people," yet it was notorious, 
that in every step from its commencement to its termination, the sense 
of the people respecting it, appeared through the medium of some re- 
presentative state assembly, either legislative or constituent. That 
the constitution itself, in many parts, recognizes the states as parties 
to the contract, particularly in the great articles of its amendment, 
and that of admitting new states into the union without a reference to 
the people ; and that even the government of the union was kept in 
motion as to one house of the legislature, by the act of the state sove- 
reignties. That added to these incontestible arguments to show that 
the states are parties to the compact, the reservation of powers not 
given, was to the states as well as to the people, recognizing the states 
as a contracting party, to whom rights were expressly reserved. From 
all which it followed, though it be not denied that the people are to be 
considered as parties to the contract, that the states are parties also, 
and as parties, were justifiable in preserving their rights under the 
compact against violation ; otherwise their existence was at an end ; 
for, if their legislative proceedings could be regulated by congressional 
sedition laws, their independency, and of course their existence, were 
gone. And although it had been within and without doors often as- 
serted, that the sedition act does not extend to words spoken, yet if 
any gentleman would read the first section, and consider the terms 
" counsel or advise," he would find that words are clearly within its 
letter, and that this part of the law seems particularly adapted for a 
deliberative assembly. He said he could not but observe, that this 
doctrine, that the people are to be considered as the only parties to 
the compact, was incomplete. The idea of a person's contracting with 
himself was absurd. Where was the other party ? He feared, though 
it was not avowed, that the gentlemen were glancing toward the old 
doctrine of a compact between government and people ; a doctrine 
which effectually destroyed the supremacy of the people and the inde- 
pendence of government, no less than the monstrous doctrine of alle- 
giance and protection, which falsely supposes, that the people are in- 
debted to the government for safety, whereas it is they who erect, sup- 
port and protect the government. That it was also curious to observe, 
that gentlemen allow the state governments to have been proper or- 
gans of the will of the people, whilst binding them by the measures 



174 

leading to the constitution, and that they still allow these organs to be 
capable of expressing their will in the election of senators, and doing 
any other acts for the execution of the constitution, whilst they deny 
that they are any organs of public will, for the sake of opposing an 
infringement of the same constitution. Thus, in framing it, and in 
executing it, in a great variety of ways, the will of the people was al- 
lowed to express itself through this medium ; but in saving it from 
violation, it shall be closed up against them; so that there shall be as 
few obstacles as possible against this violation. The people may peti- 
tion congress, said gentlemen, against the violation, and this was the 
only proper remedy. Let us, said Mr. Taylor, apply this remedy to 
another case. Suppose a state should by law violate the constitution. 
Would there be no other remedy, but for the people to petition that 
state, or for the judges of that state to decide upon the constitution- 
ality of the law 1 Why would there be another remedy 1 Because 
the constitution, having bestowed rights upon the general government, 
a violation of the constitution which should infringe those rights, would 
justify that government to take measures for its own preservation ; be- 
cause the constitution does not leave the remedy to depend upon a pe- 
tition of the people to the aggressor. Reverse the case, said he. If 
congress should unconstitutionally infringe rights reserved to the state 
governments, should they depend upon a petition of the people to the 
aggressor for their defence? They were then conducted, he said, to 
this clear position, that as congress holds the rights bestowed by the 
constitution under that, and independent of the states; so the states 
hold the rights reserved by the constitution under that, and indepen- 
dent of congress ; and of course that each power possesses the further 
right of defending those constitutional rights against the aggressions 
of the other ; for otherwise it would follow, that the power having con- 
stitutional rights, to maintain which was however unconstitutional, 
must presently disappear. 

He said, that the last argument in favor of the sedition act had 
been drawn from the law of Virginia respecting treason, which had 
been read. 

With respect to this law, he replied, that the same arguments ap- 
plied, which he had before used, to show the impropriety of quoting 
state laws, to justify congressional. It would be as just to say, that a 
state could pass laws for raising fleets and armies, because congress 
had done so, as that congress could infringe the liberty of speech, be- 
cause the states had done so. The states are expressly forbid to do 
the one, and congress the other. But this reference to the treason law 
of Virginia furnished a strong argument to prove the unconstitution- 
ality of the sedition act. The law evidently considers sedition as 
beino- one species constituting that genus called treason, which was 
made up of many parts. It therefore accurately expresses the idea of 
Virginia of the word " treason" and shows how she understood it, as 
used in the constitution. By that, treason is limited to two items, 
with the punishment of which only the general government is en- 
trusted. Hence it was evident, that Virginia could not have con- 
ceived that congress could proceed constitutionally to that species of 
treason called sedition ; and if this was not the true construction, what 



175 

security was derived from the restriction in the constitution relative to 
treason? Congress might designate the acts there specified by that 
term, and they might apply other terms to all other acts, from correct- 
ing which, that clause of the constitution intended to prohibit them ; 
by doing which, as in the case of sedition, they might go on to erect 
a code of laws to punish acts heretofore called treasonable, under 
other names, by fine, confiscation, banishment or imprisonment, until 
social intercourse shall be hunted by informers out of our country ; 
and yet all might be said to be constitutionally done, if principles 
could be evaded by words. 

Mr. Taylor concluded with observing, that the will of the people 
was better expressed through organized bodies dependent on that will, 
than by tumultuous meetings; that thus the preservation of peace and 
good order would be more secure ; that the states, however, were 
clearly parties to the constitution, as political bodies; that rights were 
reserved to them, which reservation included a power of preservation ; 
that the legislature of the state was under a double obligation to op- 
pose infractions of the constitution, as servants of the people, and also 
as the guardian of those rights of sovereignty, and that qualified in- 
dependence reserved to the state governments by the constitution ; and 
to act up to this duty, was the only possible mode of sustaining the 
fabric of American policy, according to the principles prescribed by 
the American constitution. 

Mr. BAYLEY arose next, to reply, he said, to the very extraor- 
dinary arguments which had fallen from the gentleman from Caroline, 
and was proceeding to do so ; but, finding that such a noise prevailed, 
from the impatience of the committee to rise, that he could not be 
distinctly heard, he declined, and sat down. 

On motion, the committee then rose, the chairman reported pro- 
gress, asked, and had leave for the committee to sit again. 



IN THE HOUSE OF DELEGATES, 

Friday, December 21, 1798. 

The house resolved itself into a committee of the whole house, on 
the state of the commonwealth, Mr. Breckenridge in the chair, when 
Mr. John Taylor's resolutions being still under consideration, 

Mr. GEORGE K. TAYLOR arose and said, that when these re- 
solutions were first submitted to the committee, they had been disap- 
proved by him ; and that the time which had since elapsed, with the 
most mature reflection, had quickened his disapprobation into com- 
plete aversion and entire disgust. The resolutions contained doctrines 
and principles the most extravagant and pernicious ; declarations un- 
substantiated by fact; and an invitation to other states to concur in a 



176 

breach of that constitution, which they professed to support. To sub- 
stantiate this charge, he would beg the pardon and patience of the 
committee, while he examined and criticised certain parts of the re- 
solutions, and while, agreeably to a promise given on a former occa- 
sion, he should offer some few remarks on the constitutionality of what 
is called the sedition law. 

The third clause of the resolutions begins in the following terms: 
" That this assembly doth explicitly and peremptorily declare, that it 
views the powers of the federal government as resulting from the com- 
pact to which the states alone are parties." This declaration, how- 
ever explicitly and peremptorily made, was unfounded and false : the 
states are not the only parties to the federal compact. Considered as 
particular sovereignties of detached parts of the union, they did not 
give it birth or organization : the state legislatures were not consulted 
respecting its adoption. It was the creature of the people of united 
America ; their voice spoke it into birth ; their will upholds and sup- 
ports it. To demonstrate this, it would be necessary to recur to the 
history of the present constitution, and to examine some of its features. 

When the British colonies in America, now the United States, dis- 
solved their connection with the parent country, and declared them- 
selves independent, they entered into certain articles of confederation 
and union. This was an act of the states. It was begun by the state 
representatives in congress. The articles of confederation, when di- 
gested, were sent to the legislatures of every state for consideration. 
They were ratified -by the legislature of each state in the union. 
They profess themselves to be articles of confederation and perpetual 
union between the states: they relate, in every article, not to the peo- 
ple, but to the states : they were submitted to, and adopted by, not the 
people, but the states ; and of them it may truly be said that they 
were " a compact to which the states alone were parties." 

As these articles of confederation acted exclusively on the states, 
and as they prescribed no method of compelling delinquent states to 
obey the requisitions of congress, their weakness and inefficacy be- 
came shortly visible. The most pressing demands were disregarded, 
or partially obeyed ; and the evils and expenses of war were thus pro- 
tracted and increased. Still however, the American spirit and love 
of freedom rose superior to every difficulty, and obtained after an ar- 
duous struggle, peace and independence. No sooner was the danger 
removed which had hitherto compelled some respect to the recom- 
mendations of congress, than the impotence of that body became con- 
spicuous, and the futility of that plan of government which possesses 
no sanction to enforce obedience to its laws, was demonstrated. In 
defence of our liberties a considerable debt had been incurred. Jus- 
tice and policy called on the United States to pay the interest of this 
debt, if they could not discharge the principal ; but they called in 
vain. Congress indeed recommended that a duty of five per cent, ad 
valorem should for this purpose be laid on all goods imported into the 
United States; but their recommendation was disregarded. The cer- 
tificate given to the soldier for his toil and blood in the day of battle, 
depreciated and became worthless; every public contract was uncom- 
plied with; a total disregard prevailed as to national sentiment and 



177 

honor ; symptoms of distrust, jealousy and rivalship among the several 
states appeared. The union seemed fast crumbling into annihilation, 
and the national character at home and abroad was sunk and degraded. 
The people of America began to be sensible of their situation. Dele- 
gates were at first sent from a few of the states to Annapolis, for the 
purpose of devising and recommending commercial arrangements. 
These delegates recommended that a convention from the several 
states should be appointed for the purpose of revising and amending 
the articles of confederation. Their idea was adopted. Each state 
appointed delegates to this convention, and it assembled at Philadel- 
phia, for the purpose of proposing amendments to the articles of con- 
federation. 

The deliberation of a few days convinced the convention that an 
amendment of that instrument was impracticable, and that no govern- 
ment could be efficient or permanent which operated not on the indi- 
viduals of the community, but altogether on the state sovereignties, 
and which could not compel obedience to its laws by the punish- 
ment of the disobedient and refractory. They adopted therefore a 
plan at once bold and judicious. It was to recommend a new form 
of government for general purposes, by taking from the states the 
control of all matters relating to the general welfare, and vesting 
these in the government of the union : by dividing this government 
into legislative, executive and judiciary departments, which should at 
once prescribe and enforce the rules of general conduct, without the 
aid or intervention of the state legislatures, and which should have 
power to punish the disobedient and refractory. 

Here it was to be observed, he said, that the convention acted with- 
out the express authority of the state legislatures. They were de- 
puted to amend the old articles of confederation : they were not au- 
thorized to propose new forms of government. Their love of country 
indeed, induced them to attempt a scheme or project of government 
to be submitted to their fellow-citizens, and their wisdom enabled them 
to accomplish its structure. But the state governments were no parties 
to this project, since they deputed the authors of it for different pur- 
poses, and were ignorant of the change about to be recommended. 

That the convention itself did not consider that the states were, or 
would be the only parties to this compact, was evident from the lan- 
guage used in the commencement of the new constitution : " We the 
people of the United States, in order to form a more perfect union, 
&c. ;" not "we the states of New Hampshire, &c.;" yet they had 
the old articles of confederation before them, where the states were 
constantly mentioned, and the people not once named. Why was the 
word " states" purposely discarded, and the word " people" purposely 
introduced, if as these resolutions declare, the states alone are parties 
to the compact. 

The convention, after having finished the constitution, came to the 
following resolutions : " Resolved, That the preceding constitution be 
laid before the United States in congress assembled, and that it is the 
opinion of this convention that it should afterwards be submitted to a 
convention of delegates chosen in each state by the people thereof, 
under the recommendation of its legislature, for their assent and rati- 
23 



178 

fication ; and that each convention assenting to and ratifying the same, 
should give notice thereof to the United States in congress assembled." 

" Resolved, That it is the opinion of this convention, that as soon 
as the convention of nine states shall have ratified this constitution, the 
United States in congress assembled should fix a day on which elec- 
tors should be appointed, &c." 

The former articles of confederation being in truth a compact of 
tlie states, were submitted to the state legislatures. The constitution 
of the United States was " submitted to a convention of delegates 
chosen in each state by the people thereof." The articles of confede- 
ration were assented to and ratified by the state legislatures. The 
constitution of the United States was assented to and ratified by con- 
ventions chosen in each state, by the people thereof. If the states in 
their political corporate capacity, be as the resolutions declare, the 
only parties to the latter compact, why was its consideration submitted 
not to the state legislatures, but to the people of the United States, in 
their several conventions ? 

Again : so soon as the conventions of nine states should have rati- 
fied the constitution, the convention recommended that a day should 
be fixed for the appointment of electors, &c, in order that the go- 
vernment should be put into operation. Why should the commence- 
ment of the operations of the government be postponed until the con- 
ventions of nine states should have ratified the constitution ? Because 
the states were extremely unequal in size and population, and conse- 
quently a majority of conventions might have ratified the constitution, 
when in truth a majority of the whole people had rejected it : but this 
could not be the case when the conventions of nine states had ratified ; 
because any nine states formed a majority of the people contained in 
the thirteen. Did not this circumstance then prove, that the present 
is a government proceeding from the people, and that they are mate- 
rial, if not the exclusive original parties to it? If so, how could it be 
said that the states alone are parties to the compact? 

Further : the fifth article of the constitution declares that " the con- 
gress, whenever two thirds of both houses shall deem it necessary, 
shall propose amendments to this constitution, or on the applications 
of the legislatures of two thirds of the several states, shall call a con- 
vention for proposing amendments." In each of these modes of ob- 
taining amendments, the people are evidently recognized as parties to 
the compact : — " Congress, whenever two thirds of both houses shall 
deem it necessary, shall propose amendments:" but one house of con- 
gress, the house of representatives, is the immediate representative of 
the people, the other house, the senate, is the immediate representa- 
tive of the states ; whenever then two thirds of the representatives of 
the people and two thirds of the representatives of the states shall con- 
cur in deeming it necessary, they may propose amendments. Was 
not this a recognition that the people generally, as well as the parti- 
cular state sovereignties, are interested in the operations of the go- 
vernment? How then could the states alone be said to be the parties 
to it? "Or, on the applications of the legislatures of two thirds of 
the several states, shall call a convention for proposing amendments." 
Here the idea was still supported, that the representatives of a majo- 



179 

rity of the whole people must combine in the application, which majo- 
rity it is supposable, will be two thirds of the states. The article pro- 
ceeds " which (amendments) in either case shall be valid to all intents 
and purposes, as part of this constitution, when ratified by the legisla- 
tures of three fourths of the several states, or by conventions in three 
fourths thereof, as the one or the other mode of ratification may be 
proposed by the congress." Thus congress might if they should think 
proper, divest the states in their political corporate character, of all 
agency in ratifying amendments by submitting them not to the legis- 
latures of the states, but to conventions of the people. Did this prove 
that the states alone are parties to this compact." 

* At the time of our separation from the government of Great Britain, 
the people of each state in the union, represented in convention estab- 
lished for that state a constitution or form of government. This 
having been established by the immediate representatives of the peo- 
ple, deputed for that particular and especial purpose, is not amenda- 
ble or alterable except by the same people or their representatives, de- 
puted for that special purpose ; yet the second clause of the sixth arti- 
cle of the federal constitution, is in the following words : " This con- 
stitution and the laws of the United States, which shall be made in 
pursuance thereof, and all treaties made, or which shall be made un- 
der the authority of the United States, shall be the supreme law of the 
land, and the judges in every state shall be bound thereby, any thing 
in the constitution or laws of any state to the contrary notwithstanding." 
By this clause, the constitution, laws and treaties of the United States, 
are declared to be paramount and superior to the constitution and laws 
of every particular state ; and where they may come into collision, the 
latter must yield to the former. Who could have deprived the state 
constitutions of their former supremacy, and made them subservient 
not only to the constitution, but to the constitutional laws and treaties 
of the United States, except the sovereign people, the source and 
fountain of all power. And after this should we be told that the 
states alone are parties to the compact, when so plain and palpable a 
proof was exhibited to the contrary 1 

Let those, said Mr. Taylor, who charges us with anti-republican 
sentiments, and with political blindness or heresy, examine this part 
of their own creed, and declare whether it savours of republicanism 
or orthodoxy ? We have long and fondly cherished the idea, that all 
government in America was the work and creature of the people ; 
we have regarded them with reverence and bowed down before their 
supremacy. But it was reserved for this period and for this legisla- 
ture to convince us of our error, and to prove that in America, as in 
Turkey and in France, the people are nothing, and that the state le- 
gislatures are every thing. 

The fourth clause of the resolutions is in the following words: 
" That the general assembly doth express its deep regret, that a spirit 
has in sundry instances been manifested by the federal government to 
enlarge its powers by forced constructions of the constitutional char- 
ter which defines them ; and that indications have appeared of a de- 
sign to expound certain general phrases, (which having been copied 
from the very limited grant of powers in the former articles of confe- 



180 

deration, were the less liable to be misconstrued,) so as to destroy the 
meaning and effect of the particular enumeration, which necessarily 
explains and limits the general phrases, and so as to consolidate the 
states by degrees into one sovereignty, the obvious tendency and inevi- 
table result of which would be to transform the present republican 
system of the United States into an absolute, or at best, a mixed 
monarchy" 

The charge against the federal government, contained in this 
clause, Mr. Taylor said, was of the most serious nature, and merited 
mature deliberation before it should be adopted. If it be true, that 
government was criminal indeed, and merited, not reprehension only, 
but the severest chastisement; if it be true, the present administra- 
tors of that government should be hurled from their seats with univer- 
sal execration, and submitted to the vengeance of a justly enraged 
people. If it be true, it was our duty to advise, and it was the duty 
of our constituents to practice opposition and resistance ; to draw the 
sword from the " sleep of its scabbard," and to cut out this foul can- 
cer before its roots shall have taken too fatal a spread. But, was it 
true? If it be, in what instances was it so? The resolutions de- 
clared, that <( a spirit to enlarge its powers, and to consolidate the 
states, so as to introduce monarchy, has been manifested by the ge- 
neral government in sundry instances." What were those instances ? 
Would it not have been kind and proper to enumerate them, when it 
was to enlighten the blindness of those less keen sighted than our le- 
gislative illuminati? For we, said he, who approve not these resolu- 
tions, discern not in the government these " forced constructions of 
the constitutional charter ;" those " designs to consolidate the states 
by degrees into one sovereignty;" those unconstitutional efforts " to 
enlarge its powers so as to transform the present republican system 
into an absolute, or at best, a mixed monarchy." On the contrary, 
said he, we suppose that we see the best form of government ever de- 
vised by human sagacity, wisely administered, so as to promote and 
increase the general prosperity and happiness of the people. We 
ask, where is there seen so much real happiness, prosperity and 
liberty as in these United States? We demand, whether the sun, from 
his rising in the morning, until his setting beams are quenched in the 
west, beholds so fortunate a people? Why, then, should we interrupt 
their repose, disturb their harmony, and poison their tranquillity, by 
unfounded suggestions, that their government means to rivet monarchy 
upon them? The "sundry instances" of this intention, mentioned 
during this debate, were a fleet, an army, taxes, the alien and sedi- 
tion laws. What causes have given birth to these measures? A pre- 
concerted plan of the government to introduce monarchy ? No ! 
They derive their origin from a more noble source; from a determi- 
nation to reject, with disdain, the insolent demand of tribute to a fo- 
reign nation ; from a proper care to protect our commerce from the 
piratical depredations of that nation, and from a fixed resolve to vin- 
dicate our soil from hostile invasion. Let us, I pray you, said he, re- 
collect the history of late events. Has not our government sent re- 
peated embassies to France, and have not those embassies been re- 
peatedly and contumeliously rejected ? Was not general Pinckney 



181 

threatened with imprisonment? Were not the three envoys insulted 
with a demand that their country should become tributary to France ; 
and was not that country threatened with the fate of Venice if the 
demands should be refused ? Was there a man among us who could 
bear the idea of paying tribute to any foreign country ? And when 
the consequence of the refusal, has been aggravated depredations on 
our trade, and the threat of erasing us from the list of nations, was 
there one so base who would not prepare for defence 1 What was the 
situation of things when our small navy was first equipped ? Num- 
bers of French picaroons at the mouths of all our principal rivers, lay 
in wait for our ships, and few of them escaped. What, said he, has 
been the consequence since that navy has been equipped? These 
pirates have been chased to their homes ; our coasts are no longer in- 
sulted ; the price of the productions of our soil has increased, and 
our flag floats on the ocean, respectable and respected. Was not this 
measure more wise, more patriotic, and more economical than to have 
permitted our trade still to be the prey of French cruizers, and to 
have suffered a vital wound to be inflicted on the industry antThappi- 
ness of our citizens, from the diminished value of their commodities, 
which would have been the unavoidable result? Will not, said he, 
this navy enable us, in case of invasion, to transport men and the 
munitions of war immediately and expeditiously from one port to ano- 
ther of the union ? Will it not be able to gall and distress an invad- 
ing enemy ? Why, then, shall so wise and so necessary a measure be 
construed into an effort to crush republicanism and establish monarchy 
on its ruins? 

But the regular army which is to be raised, will be the death of our 
liberty. Standing armies in all countries have been the engines of 
despotism, and they will become so in this. 

Fortunately there are two clauses in the constitution of the United 
States, which prove that so long as the representatives of the people 
remain uncorrupt, no great danger can be apprehended from standing 
armies. The first clause of the seventh section of the first article de- 
clares, that " all bills for raising revenue, shall originate in the house 
of representatives." The twelfth clause of the eighth section of the 
same article gives congress power " to raise and support armies," but 
declares, " that no appropriation of money for that use shall be for a 
longer term than two years." It is congress, and not the president, 
who are to " raise and support armies." Armies cannot be raised 
and supported without revenue. The bills for raising this revenue 
must originate in the house of representatives. Appropriations of 
money to raise and support an army, shall not be for a longer term 
than two years. The house of representatives itself is elected for 
two years only. After a first, or at most a second appropriation for 
this purpose, a new election of representatives must take place. If 
the new house of representatives deem the army useless or dangerous, 
they will refuse to appropriate for its support, and it must be disbanded. 
Thus the danger to be apprehended from an army raised for an inde- 
finite period appears not to be great. But the present army, from the 
terms of its enlistment, was to continue in service only during the ex- 
isting differences with France. After they shall cease it will be dis- 



182 

banded, and while they continue it must be necessary. For let it be 
remembered, that our foe possesses a lust of dominion insatiable ; ar- 
mies numerous and well disciplined, inured to conquest and flushed 
with victory ; officers alert and skilful ; commanders distinguished and 
renowned. Let it be remembered, that she is as destitute of friends 
as of principle, and that as she has sent one army under Buonaparte 
to pillage the East, as a compensation for their services, she may send 
another for the same purposes to rifle the West. Against this host of 
invaders, hungry as death, and insatiable as the grave, shall we op- 
pose only militia? In such a conflict what would be our chance ? A 
band of militia illy armed and completely undisciplined, to measure 
weapons with men inured to blood, and with whom murder is a sci- 
ence ! How long would our militia be able to remain in the field ? 
Each man among them would at first be hurried from his plough, and 
from the embraces of his wife and children, with scarcely a moment's 
warning. That wife and those children would soon require his re- 
turn, or the farm would remain uncultivated, and distress and misery 
would be their portion. The first detachment of militia must then 
within three or four months be relieved by another. At the moment 
when they have formed an idea of the first rudiments of war, they 
would be succeeded by others completely new and undisciplined. 
Was an army thus composed likely to prove effectual in resisting the 
invasion of veterans inured to combat and accustomed to victory ? 
Did the experience of the late war with Great Britain demonstrate 
the superlati/e efficacy of militia ? Why were the southern states 
plundered, ravaged, and for a time subdued by Cornwallis? Because 
he was opposed principally by militia, whose want of skill could not 
resist the British bayonet. Was the patriotism of the men of 1776 to 
be now disputed ? It could not be : yet they had recourse to regular 
soldiers, by whom the great and important victories of America were 
obtained, and who when peace was re-established, although unpaid 
and distressed, returned peaceably to their homes and their fire sides. 
Of whom was that army composed ? Of our fathers and our brethren. 
Of whom will the present army be composed? Of our brethren and 
our sons. Who led that army to battle and to conquest? Washing- 
ton. Who will conduct this ? The same great and good Washing- 
ton. Will he whose virtue and honor have been proved in the most 
trying seasons ; whose fame has never been surpassed in the annals 
of mankind, and who is the constant theme of applause and admira- 
tion throughout the globe, in his latter days prove so degenerate as to 
become the tool of ambition and the destroyer of liberty ? Of that 
liberty which his exertions established, and of that constitution which 
he contributed to frame, to organize and to administer ? The idea 
was too absurd to be seriously entertained ; and therefore this part of 
the subject, he said, he would dismiss with the following observation: 
A regular army was principally composed of men, who having from 
choice embraced the military profession, did not by their absence ma- 
terially impede the labor of the society, or occasion domestic difficul- 
ties and distress : Of militia, a great proportion were fathers of fami- 
lies, whose absence from their homes was extremely inconvenient and 
ruinous. The death of the regular soldier was of little comparative 



183 

importance : the death of the militiaman, who leaves behind him a 
wife and family of young children, was a serious evil. The regular 
army was prompt, skilful and effectual : the militia army must always 
be languid in its operations, undisciplined and ineffectual. Instead 
then of aiming at monarchy, our government labors by the establish- 
ment of this army, to secure success to our efforts for freedom, and to 
spare a lavish and ruinous waste of the blood of our citizens. 

Taxes, he said, are the necessary result of warlike preparations. 
These we have been compelled to adopt, by the insolence, the machi- 
nations, and the hostilities of France. They are the present price of 
our independence : and where the stake is so precious, no real Ame- 
rican could begrudge them. 

In the fifth clause of the resolutions, " the general assembly doth 
particularly protest against the palpable and alarming infractions of 
the constitution, in the two late cases of the alien and sedition acts 
passed at the last session of congress." 

On the subject of the alien law, Mr. Taylor observed, that he had 
before given his ideas at large, and should at present only repeat that 
from the authorities adduced by him on a former occasion, and from 
the reason of the thing, it appeared that the entry of an alien into 
any country was matter of favor in the sovereign power of that coun- 
try, and not matter of right on the part of the alien. During his stay, 
the country to which he has migrated, affords him hospitality and pro- 
tection : during the same period, he owes respect and obedience to its 
laws. But the country exacts from him no allegiance : he is not 
bound to fight the battles of that country : he is exempt from serving 
in the militia : he is not subject to the taxes that have only a relation 
to the citizens : he retains all his original privileges in the country 
which gave him birth : the state in which he resides has no right over 
his person, except when he is guilty of crime : he is not obliged like 
the citizens to submit, to all the commands of the sovereign : but if 
such things are required from him as he is not willing to perform, he 
may at will quit the country. The government has no right to detain 
him except for a time, and for very particular reasons. The writers 
on the law of nations therefore universally agree that the nation has 
a right to send him away whenever his stay becomes inconvenient or 
dangerous to its repose. 

The constitution of the United States, from its preamble, and 'from 
every article and section of the instrument, demonstrates that it was 
the intention and design of its framers to vest every power relating to 
the general welfare and tranquillity of the union in the general go- 
vernment. Each particular case could not be foreseen ; and there- 
fore the powers are given in general terms, and conclude with the par- 
ticular power "to make all laws which shall be necessary and proper 
for carrying into execution the foregoing powers, and all other powers 
vested by the constitution in the government of the United States, or 
in any department or officer thereof." With this palpable intention 
of its framers in our view, we ought to give to the instrument a liberal 
as well as candid interpretation. If the general government possesses 
not the power of removing dangerous aliens, but that power is vested 
exclusively in the particular states, one of the principal views of the 



184 

old confederation would remain in all its vigor. While through the 
instrumentality of these characters insurrection and treason are ma- 
turing into birth, the government will of itself be unable to avert the 
mischief, and must humbly supplicate sixteen independent and jealous 
sovereignties, to carry its designs for the public safety into effect. It 
must disclose to each state the most important and delicate secrets, as 
that state will require testimony before it begins to act. It may in re- 
peated instances be subjected to the mortification and danger of a re- 
fusal, and the alien might frequently depart from one state willing to 
exclude him, and take refuge in another determined to protect him. 
Thus the peace and safety of the union might at all times be endan- 
gered ; and the same government which can declare war against the 
foreign nation, shall not before that event takes place, be able to ex- 
clude from its soil the most dangerous and abandoned subject of that 
nation, although his residence may be the bane of public tranquillity. 

Congress has power " to provide for calling forth the militia, to exe- 
cute the laws of the union, suppress insurrections, and repel inva- 
sions." When the insurrection or invasion has taken place, congress 
may by the militia suppress the one, and repel the other. But the 
constitution declares further, that " the United States shall guarantee 
to every state in this union a republican form of government ; and 
shall protect each of them against invasion ; and on application of the 
legislature, or of the executive, (when the legislature cannot be con- 
vened,) against domestic violence." The power before recited had 
given congress power to call forth the militia to suppress insurrections, 
and repel invasions. The section last mentioned directs them to pro- 
tect each state against invasion and domestic violence. Are these 
two clauses of precisely the same meaning and import? Then the 
framers of the constitution were guilty of tautology. But they are 
not of the same import. The first gives the power of suppressing in- 
surrections, and repelling invasions, when insurrections or invasions 
should exist : the latter directs congress to protect each state against 
invasions or domestic violence, which might threaten and impend. 
Protection necessarily implies and includes the prevention of mischief 
and danger. In protecting the states then against invasion, congress 
must use the means of preventing the evil ; and the clause before re- 
cited gives them in express terms the power to make all laws neces- 
sary and proper for carrying into execution any power vested in them 
by the constitution. Congress then foresaw, from the dispute existing 
between the United States and France, that war might be the proba- 
ble result, and that invasion might be the consequence of war. To 
protect the states against this invasion, a proper measure appeared to 
be the exclusion of dangerous aliens. They were vested by the con- 
stitution with powers to pass all laws necessary and proper to protect 
the states against invasion, and they therefore constitutionally passed 
the alien law. 

But against this construction of the constitution, Mr. Tar/lor said, 
a gentleman from Orange had given the committee an extract from 
Publius, of which it could only be said, that the doctrine contained 
therein, although unquestionably sound and incontrovertible, did not 
apply to the present question. To prove this, let the extract itself, he 



185 

said, be read again. It is in the following words : " It has been urged 
and echoed that the power to lay and collect taxes, duties, imposts and 
excises, to pay the debts, and provide for the common defence and ge- 
neral welfare of the United States, amounts to an unlimited commis- 
sion to exercise every power which may be alleged to be necessary for 
the common defence or general welfare." No stronger proof could 
have been given of the distress under which these writers labor for 
objections, than their stooping to such a misconstruction. 

Had no other enumeration or definition of the powers of the con- 
gress been found in the constitution, than the general expressions just 
cited, the authors of the objection might have had some colour for it; 
though it would have been difficult to find a reason for so awkward a 
form of describing an authority to legislate in all possible cases. A 
power to destroy the freedom of the press, the trial by jury, or even to 
regulate the course of descents, or the forms of conveyances, must be 
very singularly expressed by the terms " to raise money for the gene- 
ral welfare." Publius afterwards proceeds to state other arguments 
exposing the fallacy of the opinion urged by the opposers of the con- 
stitution against this article. But let it be remembered that the sub- 
ject which Publius was discussing was this, whether the power given 
congress " to lay and collect taxes, duties, imposts and excises, to pay 
the debts, and provide for the common defence and general welfare," 
gave to congress a right of legislating on every subject whatsoever. 
Now, who among us, said Mr. Taylor, has cited this clause in favor 
of the alien law? Has any one of us, continued he, contended that 
congress possesses the right of legislating on every subject? And be- 
cause this clause does not give them such a power, did it follow that the 
power to protect the states from invasion does not authorize them, on 
the prospect of war, to exclude dangerous aliens ? Some authority 
more applicable must be produced before we shall be proved to be in 
the wrong. In defence of the alien law, Mr. Taylor observed, that he 
would make no further observations, but would call the attention of the 
committee for a few minutes, to what is called the sedition law. In 
his remarks on this, from the wide range he had taken, he should be 
compelled to be much more concise than he had intended to be. 

He presumed that it would be conceded by all who heard him, that 
each individual possessed from nature certain rights of great value and 
importance. Among these was the right to liberty and to life; and 
what was of no smaller importance than the other two, the right to his 
good name and reputation. For even in a state of nature, where the 
will of each individual was his law, and his power the measure of that 
law, and where consequently eternal strife and confusion must pre- 
vail, a good name would be of no small importance to its possessor. 
He, who when chance or misfortune had thrown his brother savage 
into his power, did not rob or abuse him, but bound up his wounds 
and dismissed him in peace, would be respected by the man he had 
benefitted, and by all others who should hear of the circumstance, and 
would in consequence be in some degree secure against insult and at- 
tack. But in a state of society the possession of reputation must for 
obvious causes be of infinite importance. This state was the result 
of a compact formed by the component individuals for the enjoyment 
24 



186 

of their natural rights to greater advantage and with greater certainty. 
Each owes to the regulations of the society implicit obedience ; and 
the society is equally bound to guarantee and to vindicate to each his 
natural and social rights. Invasions therefore against property, liberty 
or life, have been punished in every society and under every form of 
government; but the natural right to reputation is as dear and inva- 
luable to its possessor as any other whatsoever; it is essential to his 
comfort and happiness ; he could never be supposed to have consented 
to its surrender ; and invasions of it ought therefore to be punished by 
the society as well as invasions of property, liberty or life. For no 
possession whatsoever is of such real value as an honest fame : in 
comparison with it, the possession of property is of little consequence. 
Property in reality adds nothing to the respectability of its possessor. 
When lost it may be regained; or if forever lost, its former owner 
may still be respectable. But the loss of reputation is a much more 
serious mischief. It is irretrievable. Who could bear to be regarded 
by his fellow-citizens as destitute of principle and honor, and to be 
viewed by the world with contempt and detestation? Who would be 
unaffected at being deprived by the stroke of calumny of the friend 
he loved 1 Whose feelings would remain untortured, when the mis- 
tress he adored, whose smiles were those of affection, and whose eyes 
proclaimed the dominion of love, should be everlastingly estranged 
from him? When that bosom which before glowed with genial and 
sympathetic fires, should, touched by the breath of calumny, become 
cold and icy as the everlasting snows that envelope the pole? Such 
were the mischiefs accruing from the loss of reputation to the indi- 
vidual in his private capacity. But suppose him possessed of those 
virtues which dignify human existence, and of those talents which 
adorn it, and wishing to exert those virtues and those talents in a 
public capacity for the benefit of his fellow-citizens, if his reputation 
be blasted, or his character tainted, he would be spurned by those 
citizens from their presence : his talents would render him an object 
of greater odium : he would remain hated and despised through life, 
and execrated even after his death. Was the loss of property then to 
be compared with this injury? Nay, was not the loss of character 
equal or superior in mischief to the loss of existence? The murdered 
man dies an object of universal sympathy and regret — the recollec- 
tion of his virtues is cherished, and his foibles and vices are excused 
or forgotten. But the man whose reputation is tainted, lives an object 
of universal contempt and disgust, and dies the theme of infamy and 
execration. Accordingly in every society, and throughout all time, a 
remedy has been afforded to the injured individual for calumnious at- 
tacks upon his reputation. And what would be the consequence of 
impunity to such an offence? The injured man having no redress 
from the laws of his country, would arrogate to himself the right of 
revenge, and a mournful scene of assault, bloodshed and death, would 
be the unavoidable and melancholy result. These things could not 
be tolerated in a state of society; and accordingly slander and libels 
are punished with us by the common law. By the common law is un- 
derstood the unwritten law of nature and reason, applying to the com- 
mon sense of every individual, and adopted by long and universal 



187 

consent. This common law attaches itself to every government which 
the people may establish. It existed in Great Britain when our an- 
cestors migrated from that country, and it followed them to this. It 
prevailed in every state throughout the union, before their separation 
from the British empire, and it regulates the whole American people 
now. A government, then, established by that people for the general 
safety and general happiness, will of necessity be guided in cases of 
general interest and concern, by the principles and regulations of the 
same common law. By that common law unfounded calumny of ma- 
gistrates generally, was matter of punishment, of a more severe pu- 
nishment than in cases affecting the reputation of private individuals, 
because in the former instance the function rather than the man was 
the object of attack. And whenever magistrates of a new descrip- 
tion are appointed, the old principles of the common law immediately 
apply to them, and calumnies against them are of course punishable. 
Thus when these states became independent of Great Britain, a num- 
ber of officers of government was created unknown to the former co- 
lonial establishments; but no one had ever thought it necessary to 
declare by statute that slanders of them shall be punishable. When 
the constitution of the United States was formed, a new description 
of officers before unknown was created : the common Jaw pervaded 
and regulated every portion of the people which formed that constitu- 
tion ; and consequently the rules of the common law immediately at- 
tached themselves to those officers. Consequently slanders of the 
president of the United States, of members of congress, and of other 
officers of the general government, are punishable by the common 
law ; because slanders of those characters are injuries not so much to 
the man as to the community, Ours is a government which must 
rest for its support on the public sentiment. While the people approve 
it, it will flourish ; when they withdraw their affections, it must expire. 
Unfounded calumnies against the officers of government, who admi- 
nister and conduct it, tend to weaken the confidence and affection of 
the people for the government itself. The constitution of the United 
States, it is acknowledged by all, authorizes the government to punish 
acts of resistance to its measures. Would it not be strange, if when 
it authorizes them to punish acts of resistance, it should prevent them 
from punishing acts tending to introduce resistance? That the go- 
vernment must look on tame and passive while the mischief is pre- 
paring, and be incapable of action until that mischief has ripened into 
effect, when its actions and operations may perhaps be unavailing. 
That it shall be fully able to suppress and punish actual insurrection, 
but shall be incapable of preventing it. This would surely be absurd. 
And as the constitution of the United States is the work of the whole 
American people; as every man of that people is regulated by the 
common law ; as that common law attaches itself to the state govern- 
ments, established by that people, and punished unfounded calumnies 
of state magistrates, why shall it be said not to attach itself to the 
government of the whole American people? And why shall it not 
punish unfounded calumnies of the magistrates of the general govern- 
ment? Why is the state magistrate protected by the common law? 
Because he is a public functionary, and calumnies of him injure the 



188 

public. Was not a magistrate of the general government also a public 
functionary? Would not calumnies against him also injure the pub- 
lic? And if the functionary of the part be protected by law, how 
shall it be said that the functionary of the whole is left unprotected ? 
Surely reason proclaims, that in proportion to the magnitude of the 
trust reposed in the functionary, would be the mischief arising from 
false, scandalous and malicious representations of his conduct. The 
most unfounded calumnies against the governor of a particular state 
could only rouse the discontent, or excite the opposition of that state. 
But unfounded calumnies against the president of the United States, 
may paralyse, convulse and destroy the union. The reason of the 
common law applies therefore more powerfully to the magistrate of the 
general government than to the magistrate of the state government. 
But this is the general feature of that law, and of reason, that the 
person being a magistrate of whatever grade or description, and being 
vested with the authority of the laws, ought to be protected. 

That the principles of the common law apply to the general go- 
vernment, is obvious from the second section of the third article of the 
constitution, which declares, that " the judicial powers shall extend to 
all cases in lavy and equity, arising under this constitution, the laws of 
the United States, and treaties made, or which shall be made under 
their authority," and "to controversies to which the United States 
shall be party." The judiciary, in cases arising under the laws of the 
United States, will be regulated by those laws ; and in cases arising 
under treaties, by those treaties and the law of nations; but what 
cases can arise under the constitution, as distinguished from cases 
arising under the laws of the United States and under treaties, except 
cases to be decided by the rules and principles of the common law ? 
And these in " controversies to which the United States shall be 
party," will, unless altered or modified by law, operate in their full 
extent. 

This is not the only instance in which the common law is recog- 
nized in the constitution : for the ninth amendment is in these words : 
"in suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved ; and no 
fact tried by a jury shall be otherwise re-examined in any court of the 
United States, than according to the rules of the common law." When 
in the re-examination of facts tried by a jury, the courts of the United 
States are expressly prohibited from observing any other than the rules 
of the common law, the constitution itself declares, that the common 
law applies to those courts; and if it applies in one instance, it must 
apply in all others coming within their sphere, unless where it is al- 
tered by act of congress. 

The common law has been thus shown to apply to the government 
of the United States as well as to the governments of the particular 
states and to particular individuals. One rule of the common law is, 
" that he who writes, utters or publishes a false, scandalous and mali- 
cious libel against a magistrate or the government, shall be punished 
by fine and imprisonment." The writer, utterer or publisher, there- 
fore, of a false, scandalous and malicious libel against the government 



1S9 

of the United States, or any magistrate thereof, is at common law 
punishable by fine and imprisonment. 

The objection to the punishment of libels, that truth is the suffi- 
cient antagonist of error, and needs no assistance, Mr. Taylor said, 
was not correct : that falsehood was light and volatile ; she flew on the 
wings of the wind, she spread her mischiefs with inconceivable velo- 
city : that truth was the child of experience, and the companion of 
time ; she scarcely ever outstripped, and rarely kept pace with her 
companion. What mischief in all ages and in all countries have been 
occasioned to individuals, and to the public, by malignant falsehoods, 
before truth could arrive to detect and protect them. How would 
those mischiefs be aggravated, if they should remain unpunished by 
the laws! The fairest reputation, when frequently assailed, must be 
diminished in the public esteem. Each scandalous report finds some 
believers ; and at length the most charitable will be disposed to think 
that such repeated charges could not be made without some founda- 
tion. They will increase in proportion to the talents and the station 
of the injured individual, and unless they be punished by the laws, 
the most splendid abilities, and unsullied virtues, must cease to be 
useful, and sink into disgrace. 

> Mr. Taylor said, from what had been said, it would appear that the 
right to punish libels against governments, or its officers, is founded 
in the principles of nature, of reason, and of common law. The act 
of congress on this subject, said he, punishes nothing before unpunish- 
able : it creates no new crime ; it inflicts no new punishment : but on 
the contrary, it mollifies and alleviates the rigors of the common law; 
for at common law, the amount of the fine, and the time of imprison- 
ment, are unlimited, and regulated only by the discretion of the court 
trying the offence : by the act in question, the fine is limited at the 
utmost to two thousand dollars, and the imprisonment to two years. 

But the opposers of this law assert, that however the principles of 
the common law may apply to the government of the United States, in 
ordinary cases, and whatever might have been their original power to 
punish libels, this power is now taken away by the third amendment 
to the constitution. 

This amendment is in the following words : " Congress shall make 
no law respecting an establishment of religion, or prohibiting the free 
exercise thereof, or abridging the freedom of speech, or of the press." 

The difference of the terms used in this amendment, Mr. Taylor 
said, was remarkable. " Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise thereof." 
Consequently, they dare not touch the subject of religion at all. But 
further, they " shall make no law abridging the freedom of speech, or 
of the press;" not "respecting the freedom of speech, or of the press." 
When religion is concerned, congress shall make no law respecting 
the subject: when the freedom of the press is concerned, congress 
shall make no law abridging its freedom; but they may make any 
laws on the subject which do not abridge its freedom. And in fact, 
the eighth section of the first article of the constitution authorizes them 
in express terms " to promote the progress of science and useful arts, 
by securing for limited times, to authors and inventors, the exclusive 



190 

right to their respective writings and discoveries." Now if congress 
could not make any laws respecting the freedom of the press, they 
could not secure for limited times to authors their respective writings, 
by prohibiting those writings from being published and vended, except 
by those whom the authors should expressly permit. They may con- 
sequently make laws respecting the press, provided they do not 
abridge its freedom. To abridge the freedom of the press, Mr. Tay- 
lor said, was to impose upon it restraints or prohibitions which it did 
not experience before ; or to increase the penalties attached to former 
offences accruing from its licentiousness. If then the sedition law 
does impose upon the press restraints or prohibitions which it did not 
experience before that act was passed, or if it increases the penalties 
attached to former offences arising from its licentiousness, it was con- 
ceded to be unconstitutional. 

But it had been demonstrated, he said, that the common law em- 
braces and attaches itself to the constitution and government of the 
United States ; and that it punishes with indefinite fine and imprison- 
ment the writing, uttering or printing false, scandalous and malicious 
libels, when the act in question then only punishes the same false, 
scandalous and malicious writings by fine and imprisonment to a de- 
finite amount, and for a definite period, it does not impose upon the 
press restraints or prohibitions which it did not experience before, nor 
does it increase former penalties; it therefore does not abridge its 
freedom, and is consequently constitutional. To suppose that because 
congress are prohibited from making laws abridging the freedom of 
the press, they cannot punish the vile slanders and infamous calum- 
nies which from time to time issue from it, against the government, 
Mr. Taylor said, was to suppose that the people of America had given 
a solemn and constitutional sanction to vice and immorality ; that they 
had completely privileged the infamous offence of lying; and that 
every individual had consented, in case of his being employed by the 
United States, to release the society from the protection and vindica- 
tion of his natural right to reputation. 

The persons who framed the amendments to the constitution of the 
United States, were certainly men of distinguished abilities and infor- 
mation. Among them was a great proportion of lawyers, whose pe- 
culiar study had been the common law. Perhaps every one of them 
had read and maturely considered BlacJcstone' s Commentaries; these 
would inform him, that in England, the terms " freedom of the press," 
had an appropriate signification, to wit : exemption from previous re- 
straint on all publications whatever, with liability, however, on the 
part of the publisher, to individuals or the public, for slanders affect- 
ing private reputation or the public peace. Certainly every one of 
them was acquainted with the laws of his own slate, where the terms 
" freedom of the press," had precisely the same meaning as in Eng- 
land. When, then, in the amendments to the constitution they speak 
of " the freedom of the press," must it not be presumed they intended 
to convey that appropriate idea, annexed to the term both in England 
and in their native states 1 And a reference to Blackstone will clearly 
point out, both the emancipation of the press in that country from its 
former shackles, and the true import and meaning there and here, of 



191 

the term " freedom of the press." " The art of printing," says that 
valuable writer, "soon after its introduction, was looked upon (as well 
in England as in other countries) as merely a matter of state, and 
subject to the coercion of the crown. It was, therefore, regulated 
with us by the king's proclamations, prohibitions, charters of privi- 
lege and of license, and finally, by the decrees of the court of star 
chamber, which limited the number of printers and of presses which 
each should employ, and prohibited new publications, unless pre- 
viously approved by proper licensers. On the demolition of this 
odious jurisdiction in 1641, the long parliament of Charles I. after 
their rupture with that prince, assumed the same powers as the star 
chamber exercised with respect to the licensing of books, and in 1643, 
1647, 1649 and 1652, issued their ordinances for that purpose, 
founded principally on the star chamber decree of 1637. In 1662, 
was passed the statute 13 and 14 Car. II. c. 33, which (with some 
few alterations) was copied from the parliamentary ordinances. This 
act expired 1679, but was revived by statute 1 Jas. II. c. 17, and con- 
tinued till 1692. It was then continued for two years longer, by sta- 
tute IV. W. &, M. c. 24; but though frequent attempts were made by 
the government to revive it in the subsequent part of that reign, yet 
the parliament resisted it so strongly, that it finally expired, and the 
press became properly free in 1694, and has ever since so continued." 
The same writer thus elegantly defines the liberty of the press. 
" The liberty of the press is, indeed, essential to the nature of a free 
state ; but this consists in laying no previous restraints upon publica- 
tions, and not in freedom from censure for criminal matter, when 
published. Every freeman has an undoubted right to lay what senti- 
ments he pleases before the public : to forbid this, is to destroy the 
freedom of the press ; but, if he publishes what is improper, mis- 
chievous or illegal, he must take the consequence of his own temerity. 
To subject the press to the restrictive power of a licenser, as was 
formerly done, both before and since the revolution, is to subject all 
freedom of sentiment to the prejudices of one man, and make him 
the arbitrary and infallible judge of all controverted points in learn- 
ing, religion and government. But, to punish (as the law does at pre- 
sent) any dangerous or offensive writings, which, when published, 
shall, on a fair and impartial trial, be adjudged of a pernicious ten- 
dency, is necessary for the preservation of peace and good order, of 
government and religion, the only solid foundations of civil liberty. 
Thus the will of individuals is still left free ; the abuse only of that 
free will, is the object of legal punishment. Neither is any restraint 
hereby laid upon freedom of thought or inquiry ; liberty of private 
sentiment is still left; the disseminating or making public of bad sen- 
timents, destructive of the ends of society, is the crime which society 
corrects." " A man (says a fine writer on this subject) may be al- 
lowed to keep poisons in his closet, but not publicly to vend them as 
cordials. And to this we may add, that the only plausible argu- 
ment heretofore used for the restraining the just freedom of the 
press, 'that it was necessary to prevent the daily abuse of it, 5 will 
entirely lose its force, when it is shown (by a seasonable exertion of 
the laws) that the press cannot be abused to any bad purpose, without 



192 

incurring a suitable punishment ; whereas it never can be used to any 
good one, when under the control of an inspector. So true will it be 
found, that to censure the licentiousness, is to maintain the liberty of 
the press." 

In England, said Mr. Taylor, the laying no previous restraints 
upon publications, is freedom of the press. In every one of the Uni- 
ted States, the laying no previous restraints upon publications hath al- 
ways been, and still is deemed freedom of the press. In England, 
notwithstanding the freedom of the press, the publication of false, 
scandalous and malicious writings is punishable by fine and imprison- 
ment. In every one of the United States, notwithstanding the free- 
dom of the press, the publication of false, scandalous and malicious 
writings is punishable in the same manner. If the freedom of the 
press be not therefore abridged in the government of any particular 
state, by the punishment of false, scandalous and malicious writings, 
how could it be said to be abridged when the same punishment is in- 
flicted on the same offence by the government of the whole people. 

If it should be thought that this point required further elucidation, 
let us, said Mr. Taylor, look for it in the constitution of the state of 
Virginia. It had been said, that the general government, being con- 
stituted for particular purposes, possesses only such powers as are 
granted : and this was conceded to be true. It had been also said, 
that the state governments, being constituted for the general regula- 
tion of the people in each state, possess all powers which the people 
have not expressly retained to themselves : and this, for the sake of 
argument, shall also be granted. Yet it would not be disputed, that 
the powers retained by the people to themselves in their state consti- 
tution, are as sacred and inviolable as those retained by the people to 
themselves in the constitution of the United States. Now the people 
of Virginia in their state constitution, appear to have been as jealous 
of this freedom of the press, as were the people of the United States 
in the formation of the federal constitution. For if the constitution of 
the United States declares, that congress shall " make no law abridg- 
ing the freedom of speech or of the press," the constitution of Virgi' 
nia, in the twelfth article of the bill of rights, declares, " that the free- 
dom of the press is one of the great bulwarks of liberty, and can ne- 
ver be restrained but by despotic governments." The legislature of 
Virginia, therefore, Mr. Taylor said, could no more pass a law re- 
straining the freedom of the press, than congress could pass a law 
abridging the freedom of the press. The liberty of the press could 
not be restrained without being abridged. Yet it had never been 
doubted that false, scandalous and malicious writings are punishable 
in Virginia. In the year 1792, the legislature of this state passed a 
law " against divulgers of false news," and no one suggested that the 
liberty of the press was thereby restrained. In the same session ano- 
ther act was passed, declaring "that any person who shall, by zoriting 
or advised speaking, endeavour to instigate the people of this common- 
wealth to erect or establish any government separate from, or inde- 
pendent of, the government of Virginia, within the limits thereof, 
without the assent of the legislature of this commonwealth for that 
purpose first obtained, shall be adjudged guilty of a high crime and 



193 

misdemeanor, and on conviction, shall be subject to such pains and 
penalties, not extending to life or member, as the court before whom 
the conviction shall be, shall adjudge." Neither was this law deemed 
unconstitutional. Now if the legislature of Virginia could pass laws 
punishing divulgers of false news, and writers advising the people to 
particular detrimental acts, without restraining the freedom of the 
press, could not the legislature of the union punish false, scandalous 
and malicious writings tending to destroy the government, or to bring 
it into hatred and contempt, without abridging the freedom of the 
press? To say that they could not, was to declare that punishing the 
licentiousness is abridging the freedom of the press; and that licen- 
tiousness and freedom are synonimous terms. 

Every man, continued Mr. Taylor, has a right to freedom of ac- 
tion ; but no one supposed that this bestowed upon him the right to 
assault another on the highway. Every one has a right to the free- 
dom of the press ; but should he use it so as to assault the happiness 
of an individual or the repose of society, without being liable to punish- 
ment for the mischief he had occasioned? 

It had been said, that false, scandalous and malicious libels against 
the government of the United States, or any officer thereof, are punish- 
able in the courts of each state respectively ; but this was believed to 
be incorrect. Libels against state magistrates, or such officers of the 
general government as reside in Virginia, are punishable in our state 
courts, because the injured persons reside within the limits of the 
state, contribute to its support, and are entitled to protection from it : 
but libels against the magistrates of a foreign nation, or of a sister 
state, or of the general government, residing out of this state, are not 
punishable in our courts, because the injured individuals in these 
cases are not bound by our state laws, do not sustain the burthens, or 
contribute to the support of the commonwealth, and are consequently 
not entitled to its protection. But it would not be denied, that an in- 
famous slander of the president of the United States, tending to pro- 
duce insurrection, was equally mischievous, if published by a citizen 
of Virginia, as if published by a citizen of Pennsylvania. The courts 
of the United States, therefore, must take cognizance of the case, or 
the offence would remain unpunished. Every public incendiary would, 
by palpable misrepresentations and abominable falsehoods, continually 
agitate and convulse the minds of the people. That affection towards 
the government which alone supports it, would shortly be withdrawn, 
and would speedily fall, to rise no more. 

On the sedition law, Mr. Taylor said, he would make no further 
remarks, but would proceed to other parts of the resolutions. 

The seventh resolution is in the words following : " That the good 
people of this commonwealth having ever felt and continuing to feel 
the most sincere affection to their brethren of the other states, the 
truest anxiety for establishing and perpetuating the union of all, and 
the most scrupulous fidelity to that constitution which is the pledge of 
mutual friendship and the instrument of mutual happiness, the gene- 
ral assembly doth solemnly appeal to the like dispositions of the other 
states, in confidence that they will concur with this commonwealth in 
declaring, as it does hereby declare, that the acts aforesaid are unconsti- 
25 



194 

tutional and not law, hut utterly null, void, and of no effect, and that 
the necessary and proper measures will be taken by each for co-opera- 
ting with this state in maintaining unimpaired the authorities, rights 
and liberties reserved to the states respectively, or to the people." 

On this resolution, Mr. Taylor said, two remarks would be submit- 
ted. The legislature of one state in the union, declare two acts passed 
by a majority of the representatives of the whole American people, to 
be unconstitutional, and not law, but utterly null, void, and of no ef- 
fect. They declare this, not as an opinion, but as a certain and in- 
controvertible fact; in consequence of which, the people of the state 
owe no submission to the laws. Have, continued he, the representa- 
tives of a part, a power thus to control and to defeat the acts of the 
whole ? In the congress of the United States,- the people of each state 
are fairly and equally represented in proportion to the population of 
that state. If, after a majority in that congress have decided that cer- 
tain laws are constitutional and expedient, the legislature of Virginia 
hath a right to annul those laws by declaring them to be unconstitu- 
tional, the old republican maxim that the majority must govern, was 
exploded, and the union would be dissolved. If the state of Virginia 
could repeal and annul the alien and sedition laws, she could repeal 
and annul any other acts of congress ; and if she hath the right, every 
other state must possess it likewise. 

If any act passed by congress be unconstitutional, the judges of 
the federal court, who are unbiassed by party, and unwarped by pre- 
judice, and who are selected for their superior talents and integrity, 
afforded a constitutional check upon the legislature. The people 
themselves are another most powerful check ; for they will know the 
vote of their representatives, and if they deem the law for which they 
voted to be unconstitutional, they will order them to depart at the 
ensuing election, and replace them with others more wise and more 
virtuous. Here were two peaceable and happy modes of correcting 
the mischief: whereas, for one or more jealous state legislatures to 
endeavour to repel or control the acts of congress by their sovereign 
power, was at once to introduce disunion and civil war. The govern- 
ment of the union, which might have yielded to fair reason and argu- 
ment, will never give way to the threats or force of these rival sove- 
reignties. If they do, the powers and energies of the federal govern- 
ment would be from that moment destroyed. They will determine to 
try the experiment whether the union shall govern a few states, or a 
few states shall rule the union. The certain consequence will be a 
resort to arms, civil war and carnage, and a probable dismemberment 
of the union. 

Of such consequences, in such an event, the framers of the consti- 
tution were aware. They therefore wisely in the tenth section of the 
first article declared that "no state shall, without the consent of 
the congress, enter into any agreement or compact with another state 
or with a foreign power." The resolution last cited, however, invited 
the other states to " take the necessary and proper measures, for co- 
operating with this state in maintaining unimpaired, the authorities, 
rights and liberties reserved to the states respectively, or to the peo- 
ple." Could other states co-operate with this for these purposes, un- 



195 

less by virtue of some previous agreement or compact ? To co-operate, 
was to act in concert. Must not some agreement or compact among 
the states precede their acting in concert'? It must, in the nature of 
things. Does not the constitution forbid this agreement or compact 
in positive and express terms? Were we not then inviting our sister 
states to a deliberate and palpable breach of the constitution ; and 
this at the moment when we were so liberally reviling congress for an 
imputed breach of the same instrument. Did their example autho- 
rize us to violate what we had solemnly sworn to support and preserve ? 
Or did an act which was not to be tolerated in the wicked congress, 
become venial or laudable when committed by the saints composing 
this assembly? 

These resolutions, continued Mr. Taylor, must have some ultimate 
object; and it had been demanded what that object was? The gen- 
tleman from Caroline had answered that it was ultimately to induce 
the states to call another general convention for the amendment of 
the constitution. How unfortunate and ruinous such an experiment 
would be, the reflection of a few moments must convince us. 

When the circumstances and the time when the convention assem- 
bled which formed our present constitution, and the importance and 
difficulty of the task which they undertook and executed, were con- 
sidered, we had ample cause to return our fervent thanks to the Al- 
mighty for the issue of their labors. At that time the weakness and 
inefficacy of the articles of confederation was perceived and acknow- 
ledged by us all ; our contracts were undischarged ; our credit was 
destroyed ; and our character as a nation was contemptible both at 
home and abroad. All America united in the sentiment that a change 
was essential : all America deputed members to the convention which 
introduced that change. Foreign nations despised us too much to in- 
terfere in the deliberations of that body, or of the state conventions 
which afterwards adopted the instrument. Even under these circum- 
stances, the harmony with which the plan was recommended, and the 
unanimity with which it was adopted, were subjects of amazement 
and wonder. 

But what would be the consequence and effect of a convention 
summoned to amend the constitution at the present moment. Now, 
said he, party spirit unfortunately flames and rages. Some think the 
constitution as perfect as it could be made, while others consider it as 
the harbinger of monarchy, and others again, suppose that the powers 
of government require an increase of energy and power. A spirit of 
mutual concession could no longer be expected. The delegates from 
the northern and southern parts of the union would behold each other 
with jealousy and suspicion. They would never unite in the same 
project. They might agree indeed in pulling down the present build- 
ing, but they would never agree in erecting another. 

This too is a period when the whole European world is convulsed 
and in arms ; our rising importance attracts their attention and ex- 
cites their fears. Even in the present state of things, their ministers 
and agents were continually intriguing among our citizens. Would 
they remain idle and unemployed while the convention was delibe- 
rating ? Would they not afford fuel to the flame of party, and pre- 



196 

pare the public mind to reject every scheme which might be proposed ? 
Was it not reasonable to be expected that the consequence of their 
exertions, and our own ferments, would be confusion, anarchy, civil 
war and disunion? Enjoying, then, as we do, every happiness to 
which reason can aspire, shall we, said he, wantonly attempt a 
change by which little could be obtained, and every thing might be 
sacrificed. 

In Virginia, Mr. Taylor said, the general sentiment was that the 
government of the United States verges towards, and will ultimately 
settle in a monarchy. But the measures of that government are sup- 
ported by a majority of the house of representatives, and by a still 
greater majority of the senate. From this obvious proof of the pre- 
vailing sentiment throughout the union, was it to be expected that 
another government would be framed vesting smaller or fewer powers 
in the executive than he at present exercises? Would not our object 
on the contrary, be defeated, since the general convention would pro- 
bably enlarge instead of diminish the powers of the national govern- 
ment? No other consequence, therefore, could at the present time, 
and under existing circumstances, follow such an experiment, but in- 
crease of dissatisfaction and disgust, and a more ardent disposition to 
dissever the bonds of union which now connect all America. 

In such a convention, in vain should we reckon on the superior im- 
portance, power and influence of Virginia. A majority of states 
would never agree to summon another convention unless it should be 
previously agreed and declared that the votes shall be taken as in the 
former convention, by states. In such a convention, where the influ- 
ence of Delaware or Rhode Island would be as great, and their re- 
spective votes would weigh as much as those of Virginia and Penn- 
sylvania, what would be our chance of carrying our particular objects 
into effect. The smaller states already behold us with jealousy and 
apprehension. Each representative would come prepared to watch, to 
oppose and circumvent every other. Northern and southern, eastern 
and western parties and interests would immediately appear; and the 
convention, after a restless and turbulent session, which would increase 
instead of diminish the rage of faction among their constituents, 
would rise in confusion. The sound of peace would be no longer 
heard ; the sentiment of union would no longer continue, but the 
sword would be drawn, the union forever dismembered, and the bloody 
history of Europe would be retraced in the melancholy annals of di- 
vided and hostile America. 

How sad and gloomy a contrast would such a state of things afford 
to the present flattering and happy aspect of our affairs. At this day, 
said Mr. Taylor, America, united under one government, experiences 
an increase of wealth and population unknown to any other country. 
Mild and equal laws, industrious and enterprising citizens, peace 
among ourselves and respect from foreign nations, render us the envy 
of every other part of the globe. Mr. Taylor then concluded with 
the following observations : May He who rules the hearts of men, 
still dispose us to yield obedience to the constitutional acts of the ma- 
jority ; may He avert the mischiefs which these resolutions are calcu- 
lated to produce ; may He increase the love of union among our citi- 



197 

zens ; may no precipitate acts of the legislature of Virginia convulse 
or destroy it ; and to sum up all in one word, may it be perpetual. 

Mr. GILES arose next, and said, as he had but lately appeared be- 
fore the committee, he would not have obtruded any observations upon 
it, had not some remarks, which had fallen from gentlemen, made 
some impression upon him. Therefore, though unprepared, he would 
make a iew observations. He then observed, that for several years 
past he had had an opportunity of considering the systems pursued 
by both the state government and general government. Of those he 
considered the system of Virginia the best and mildest. For after 
twenty years operation, little mischief could be proved to have pro- 
ceeded from it; but on the contrary, much good had been done by 
the administration of it in that time. There had been no complaint 
that he had heard respecting the injury of person or property ; and 
there had been at the same time less energy in it than in any other 
government whatever. The injunctions of law had been duly obeyed, 
and the laws of the United States particularly as much so here as in 
any other state. What had been the cause of this? Not the rigor, 
but the mildness of the laws. And were such principle always to be 
attended to, the necessity of energy in the executive branch would 
never exist. Mr. Giles then asked what was that energy ? It was 
despotism. Whence had sprung the distinction of parties? Not 
while Virginia was left to herself. He then proceeded to pass an high 
eulogium on her system, which had been felt by him in private life; 
for he confessed that he had never acted in a public character in this 
body before. Whence then did party spirit arise? It had been since 
that new doctrine had taken place of strengthening the hands of the 
executive of the United States to give it an energy. And proceeded 
to show of what kind that was. 

Since that period, he said, efforts to resist had originated. Mr. 
Giles then requested the committee to examine the powers of the ge- 
neral government, and observe what was the opinion formed of them 
at its commencement. He then mentioned certain systems which had 
been established in the course of its operation, such as the funding 
system, bank, &c. These*systems being established, it would be 
thought necessary from time to time to give them energy. He said, 
there was a kind of sophistry used by the general government in as- 
signing that for the means which was in fact the end ; and stated for 
example the case of invasion and insurrection. The sedition law had 
been called the means for preventing them : but he (Mr. Giles) de- 
clared the contrary to be the fact. The sedition law was truly the 
end, and an invasion was made use of as the means to introduce it. 
He would examine the constitution he said : and there he found the 
language as plain as the English language could be. Still, however, 
that language, plain as it was, was avoided by calling an end a means. 
The sedition law then, was an end to suppress a certain party in the 
United States. But it had been predicted by gentlemen, that many 
mischievous consequences would attend the adoption of the plan pro- 
posed by the resolutions before the committee. Mr. Giles contended, 
however, that if such consequences did take place, they would not 



198 

proceed from any act of this assembly, but from these acts of con- 
gress already passed. As for himself, he wished as much as others to 
preserve happiness. His efforts were tending to that end. An oath 
too had been spoken of. What was it? " To support the constitu- 
tion of the United States." It became then the duty of the members 
of this assembly, who had taken such an oath, to support the consti- 
tution. But it had been said, that on this occasion a resort must be 
made to the judiciary and to the people. Why so? said Mr. Giles. 
The members of this assembly have taken the same oath to support 
the constitution as the judiciary and the people. It became then as 
much their duty to support it, as it was that of the others. He then 
asked, how was the constitution to be supported ; and said, that it was 
by resisting all attacks upon it, not any particular acts only. But the 
right of the members of this assembly to speak their opinions upon 
the subject was questioned. It was said, that they must inform the 
people so, that they must do it, that the judges must do it, and that 
they their representatives wished not to do it themselves. Mr. Giles 
then said, that the measures of our present government tended to the 
establishment of monarchy, limited or absolute. It had been said too 
that the people only were parties to the compact. But Mr. Giles asked 
what was an association of people? A federal. No; it was a social 
compact. How then would they support it as a federal government, 
if it were only a social compact. The state government was truly of 
the latter kind. The general government was partly of each kind. 
The objection to the word only then was correct, and before he con- 
cluded, he should move to strike it out. But he acknowledged that 
they were then acting as a state. The gentleman from Westmoreland 
had delivered his opinion respecting the formation of the government. 
In this opinion, Mr. Giles said, the gentleman was partly correct, and 
partly incorrect. The United States would perhaps have been in a 
different situation, if what the gentleman had asserted, had been es- 
tablished. He then proceeded to show in what manner several states 
in the union appointed their electors to choose a president, which was 
by their legislatures. The federal idea then of the other side was not 
correct. And if on the other hand, the government were a social 
compact, he pronounced monarchy to be near at hand, the symptoms 
and causes of which he particularly pointed out: And concluded that 
the state legislatures alone at this time prevented monarchy. He then 
said, that in proportion as the powers of the government were extended, 
new excuses for more energy would arise. And what was energy ? A 
coercing of the public will. He then observed how little energy was 
exerted in Virginia. The energy of the laws was sufficient. He 
hoped then that the right of the committee to proceed to examine the 
subject would not be denied. The gentleman from Prince George 
had dwelt upon the present happiness of the people, to disprove which 
Mr. Giles called to mind the rigorous proceedings of the government, 
and particularly cited the case of Matthcio Lyon, whom notwithstand- 
ing the reports propagated to his prejudice, he said he would aver to 
be a man of much worth. The effects of these laws of congress were 
not yet sufficiently known. The medium of information had hereto- 
fore been contracted and imperfect. This house was then underta- 



199 

king to make them more known. The critical situation of the United 
States too, had been mentioned : that France and England both had 
a view towards us; and that therefore great caution should be used. 
He then proceeded to take notice of the measures adopted by the last 
congress. The cause for them held out, was the danger to be appre- 
hended from a certain foreign power. This cause had produced the 
laws respecting the navy, the army, aliens, and the sedition law, which 
last operated upon citizens, and not foreigners. Those gentlemen, 
he said, who never had been about the seat of government, could 
form no conception of the exertions of persons who were continually 
infusing into men's minds the notions of energy. Mr. Giles then read 
an answer of the president of the United States, to show what he had 
in view in respect to that foreign power so much feared. It was his 
answer to the address of the people of Bath. He read it, and pro- 
ceeded to comment on the latter part of it respecting a party in Virginia 
to be crushed into dust and ashes. He asked, what was that party ? 
They were said to be French partizans. But by whom were they so 
called? He asked too, who were the favorers of the resolutions? 
Not Frenchmen ; but good citizens. This was the party then to be 
crushed, before the schemes of the president could be effected. He 
said, that he could produce more answers of the president avowing 
the same principles and design as that already cited : but he would not 
tire the committee with them. He declared himself however to be as 
good a citizen as the president. Why then was he to be crushed into 
dust and ashes? He then expressed his disapprobation of the measures 
adopted by the government respecting the army and navy. He asked, 
of what characters would they be composed ? Of the idle and dissipated 
part of the community. On the contrary, who were the patriots, who 
would protect their country ? This very party mentioned by the presi- 
dent, would repel any invasion. It was true they had no arms; but they 
would find arms. Mr. Giles then said, that he approved of the argu- 
ment used by the gentleman from Caroline, respecting the volunteers, 
but wished it to be somewhat more extended. He thought it a much 
more serious matter than any other. The gentleman from Caroline 
had used it in regard to the president's enlisting aliens merely. But 
Mr. Giles said, he would ask further, of whom those companies were 
to be composed ? Not of farmers or farmers' sons, but chiefly of 
aliens. He himself believed that the operation of the last mentioned 
law was intended to unite both. But it was said, the people would 
protect the constitution ; that the judges would protect it. He then 
observed, that opposition to foreign power was always the pretence to 
usurpation. To prove that, he instanced the case of Rome. There, 
he said, whenever the people found themselves oppressed, and soli- 
cited redress, they were told by their rulers that was not the time ; 
that the commonwealth was in danger; that the Volsci were at their 
gates. Mr. Giles then said, that by the measures adopted by the last 
congress, nothing had been left undone to carry us into monarchy. 
But, union was now said to be necessary. What was that union for? 
To abridge the freedom of the press. Was that desirable 1 He com- 
pared this to the case of robbers forming an union for the purpose of 
robbing. And said, that good was the object of the union of the 



200 

states, and not mischief. He then adverted to the distinction between 
opinion and fact. He said Mr. Jefferson's was a good distinction. And 
that the assertion of false fact was punishable before the sedition law 
was passed ; but the assertion of false opinion was not. There was 
no standard to ascertain that; there was, however, in respect to false 
fact. This sedition law, then, deprived men of the freedom of 
speech. It prescribed the punishment of a new thing. Opinion 
heretofore had ranged at large, had always prevailed. Mr. Giles 
then asked, how was the restriction of opinion introduced in France. 
It was brought about in Robespierre's reign of terrorism. He then 
asked how this party mentioned by the president, was to be crushed? 
Incarceration would not be sufficient. In regard to the restric- 
tion of opinion, he compared our situation to that of France in 
the reign of Robespierre. As for himself, he feared not the sys- 
tem, but thought the most effectual mode was now pursued to in- 
troduce the same despotism here as had prevailed in France. He 
approved the mode adopted by the resolutions, in making a declara- 
tion to conflict with other opinions. He then referred to our situation, 
and said, that he felt himself as much interested as any one to ward 
off war; but he thought the worst of all things was ultimately sub- 
mission; and that a constitutional violation was more degrading than 
any thing. But the resolutions had been charged with containing 
invective. He said, if there were any, it must arise from simple lan- 
guage expressing simple truths. However, if better could be used, 
he would be willing to agree to it. But, he doubted whether should 
even the Lord's prayer be introduced before them, and undergo a 
criticism, they could be brought to agree to it. It had been said, that 
if this assembly critically examined the measures of the general go- 
vernment, they should use more pleasant terms. But, Mr. Giles said, 
they were not terms, but truths that were unpleasant. He proceeded 
next to consider the alien law, and to answer the observations of gen- 
tlemen in respect to aliens having no rights. In advocating the rights 
of aliens, he said, he did not consider what was popular, but what was 
justice. A stranger coming into a country, had a right to protection. 
It was not a matter of favor only. A great number of persons al- 
ready admitted into this country, he said, were not citizens. They 
would be affected by this law. He insisted that aliens were not only 
entitled to a trial by jury, but to that particular benefit of a jury de 
medietate Ungues by the law in force both in England and here. It 
had been said, however, that this was not a trial of guilt, but to pre- 
vent it. That, he said, made no difference. A trial was still neces- 
sary. He conceived that there was no foreign, but a domestic reason 
for this law. It was said that the French were ambitious. But, was 
this a ground for the laws to affect our domestic operations? If they 
were repealed, the government would be as firm as it was now. The 
administration, he said, was not the government. The government 
could subsist without it. For instance, it was once thought in Swit- 
zerland, that it was necessary to keep a bear amongst them for their 
prosperity and safety. After a while, the bear broke his chain and 
run away. For some time after, the people continued to lament his 
escape, and expected that some dreadful calamity would befall them. 



201 

But, after waiting some time, and finding that no such calamity ar- 
rived, they began to bring themselves by degrees to believe, that the 
bear was of no use, and that they could do as well without him as 
with him. Mr. Giles then said, that he was as much in favor of go- 
vernment as any man, and would contribute as liberally to its support, 
but was not an advocate for improper measures. He then proceeded 
to consider the sedition law. He observed, that the gentleman from 
Prince George had mentioned the God of Heaven. But, he had 
nothing to do with the constitution. If he had, it was omnipotent. 
On the contrary, Mr. Giles said, that the powers of government were 
derived from the constitution, and not from the reason and nature of 
things. Implication, he said, was a dangerous doctrine. There was 
an express prohibition of all powers not granted by the constitution. 
The constitution and this law convey to the mind different impres- 
sions. The derivation of power, he again insisted, could not be 
proved otherwise than from the constitution. The powers not given 
by that, were retained to the states or to the people. What, then, was 
given to each? The general government, he said, should not be en- 
trusted to decide upon character, or in case of murder. That power 
was reserved to the state. That was the proper authority for regu- 
lating and deciding upon these matters. Mr. Giles made some fur- 
ther observations on the last clause of the law last mentioned, and 
then said, that declaring these acts of congress unconstitutional, satis- 
fied the oaths of the members of this assembly. He would agree to 
stop after that, if they thought proper, and to strike out every thing 
beyond it. If gentlemen thought the laws were unconstitutional, they 
were bound to say so ; otherwise, it would be a dereliction of the oath 
which they had taken. For his part, he said, he should vote for some- 
thing which would express his opinion upon the subject. He would, 
however, at any rate, move to strike out of the resolutions before the 
committee, the word alone. 

Mr. NICHOLAS seconded Mr. Giles's motion for striking out of 
the resolutions the word alone; and further observed, that either the gen- 
tleman from Prince George or himself, misunderstood the gentleman 
from Caroline in respect to calling a convention. He hoped, there- 
fore, that the gentleman from Caroline would explain himself upon 
that point. Mr. Nicholas then stated what he understood that gentle- 
man to say, which he himself approved; but on the contrary, did not 
approve the calling a convention. 

Mr. BOLLING said, that he understood the gentleman from Caro- 
line in the same manner that the gentleman who was last up did, in 
respect to calling a convention. Mr. Boiling also made several ob- 
servations to show that the gentleman from Prince George had misun- 
derstood Mr. Jefferson's letter which had been quoted by him. 

Mr. JOHN TAYLOR said he would explain in a few words what 

he had before said. That the plan proposed by the resolutions would 

not eventuate in war, but might in a convention. He did not admit, 

or contemplate, that a convention would be called. He only said, that 

26 



202 

if congress, upon being addressed to have those laws repealed, should 
persist, they might by a concurrence of three fourths of the states, be 
compelled to call a convention. Mr. Taylor further said, that while 
up he would himself move to strike out certain words of the resolu- 
tions, if the same were in order ; which being agreed to without a 
question taken, Mr. Taylor proceeded to do so. 

The original resolutions offered by him to the house, and referred 
to the committee of the whole house on the state of the common- 
wealth, were in the following words : 

Resolved, as the opinion of this committee, that the general assem- 
bly of Virginia doth unequivocally express a firm resolution to main- 
tain and defend the constitution of the United States, and the consti- 
tution of this state, against every aggression, either foreign or domes- 
tic, and that they will support the government of the United States in 
all measures warranted by the former. 

That this assembly most solemnly declares a warm attachment to 
the union of the states, to maintain which, it pledges all its powers; 
and that for this end it is their duty to watch over and oppose every 
infraction of those principles, which constitute the only basis of that 
union, because a faithful observance of them can alone secure its ex- 
istence, and the public happiness. 

That this assembly doth explicitly and peremptorily declare that it 
views the powers of the federal government as resulting from the com- 
pact, to which the states alone are parties, as limited by the plain sense 
and intention of the instrument constituting that compact; as no fur- 
ther valid than they are authorized by the grants enumerated in that 
compact; and that in case of a deliberate, palpable and dangerous 
exercise of other powers not granted by the said compact, the states, 
who are parties thereto, have the right, and are in duty bound, to in- 
terpose for arresting the progress of the evil, and for maintaining 
within their respective limits, the authorities, rights and liberties ap- 
pertaining to them. 

That the general assembly doth also express its deep regret that a 
spirit has in sundry instances been manifested by the federal govern- 
ment, to enlarge its powers by forced constructions of the constitu- 
tional charter which defines them ; and that indications have appeared 
of a design to expound certain general phrases (which having been 
copied from the very limited grant of powers in the former articles of 
confederation, were the less liable to be misconstrued,) so as to destroy 
the meaning and effect of the particular enumeration, which necessarily 
explains and limits the general phrases, and so as to consolidate the 
states by degrees into one sovereignty, the obvious tendency and inevi- 
table result of which would be to transform the present republican sys- 
tem of the United States into an absolute, or at best a mixed monarchy. 

That the general assembly doth particularly protest against the pal- 
pable and alarming infractions of the constitution, in the two late cases 
of the " alien and sedition acts," passed at the last session of congress, 
the first of which exercises a power no where delegated to the federal 
government; and which by uniting legislative and judicial powers to 
those of executive, subverts the general principles of free government, 
as well as the particular organization and positive provisions of the 



203 

federal constitution ; and the other of which acts exercises in like 
manner a power not delegated by the constitution, but on the contrary 
expressly and positively forbidden by one of the amendments thereto ; 
a power which more than any other ought to produce universal alarm, 
because it is levelled against that right of freely examining public cha- 
racters and measures, and of free communication among the people 
thereon, which has ever been justly deemed the only effectual guardian 
of every other right. 

That this state having by its convention which ratified the federal 
constitution, expressly declared, "that among other essential rights, 
the liberty of conscience and of the press cannot be cancelled, abridged, 
restrained or modified by any authority of the United States," and from 
its extreme anxiety to guard these rights from every possible attack of 
sophistry or ambition, having with other states recommended an amend- 
ment for that purpose, which amendment was in due time annexed to 
the constitution, it would mark a reproachful inconsistency and crimi- 
nal degeneracy, if an indifference were now shown to the most palpa- 
ble violation of one of the rights thus declared and secured, and to the 
establishment of a precedent which may be fatal to the other. 

That the good people of this commonwealth having ever felt, and 
continuing to feel the most sincere affection to their brethren of the 
other states, the truest anxiety for establishing and perpetuating the 
union of all, and the most scrupulous fidelity to that constitution which 
is the pledge of mutual friendship, and the instrument of mutual hap- 
piness, the general assembly doth solemnly appeal to the like disposi- 
tions of the other states, in confidence that they will concur with this 
commonwealth in declaring, as it does hereby declare, that the acts 
aforesaid are unconstitutional, and not law, but utterly null, void, and 
of no force or effect, and that the necessary and proper measures will 
be taken by each, for co-operating with this state in maintaining un- 
impaired the authorities, rights and liberties reserved to the states re- 
spectively, or to the people. 

That the governor be desired to transmit a copy of the foregoing 
resolutions to the executive authority of each of the other states, with a 
request that the same may be communicated to the legislature thereof. 

And that a copy be furnished to each of the senators and represen- 
tatives, representing this state in the congress of the United States. 

The word " alone" in the third clause, and the words " and not law, 
but utterly null, void, and of no force or effect," in the seventh clause, 
were stricken out of the foregoing resolutions. 

Mr. John Taylor's resolutions thus amended, being then read by 
the chairman, Mr. Brooke moved to amend the same, by substituting in 
lieu thereof the resolution which he had offered to the committee on 
Tuesday, the 18th instant, and which was then laid upon the table. 
The question was put thereupon, and the amendment disagreed to by 
the committee. The main question was then put on Mr. John Tay- 
lor's resolutions as amended by himself, and agreed to. 

The committee then rose, and Mr. Breckenridge reported, that the 
committee of the whole house on the state of the commonwealth had 
had the same under their consideration, and had come to certain reso- 
lutions thereupon, which he handed in to the clerk's table, (being Mr. 



204 

John Taylor's resolutions, as above stated, amended and agreed to by 
the committee.) 

General LEE then arose and observed, that although desirous of 
ending the debate, yet wishing, with the gentleman from Amelia, to 
meliorate the paper before them, by striking out some other part of the 
resolutions, he would move an amendment to that effect. He then 
read the fourth clause of the resolutions, and objected to the same as 
containing assertions which he could not believe, and at the same time 
also a high charge against the general government. He therefore 
moved to strike out that clause. 

Mr. BOLLING said, that in order to convince the gentleman from 
Westmoreland of the futility of his proposition, he hoped that no other 
gentleman would disgrace himself and the wisdom of the house, by 
gratifying the gentleman with a reply on the occasion. He (Mr. Boi- 
ling) had arisen, therefore, to second the gentleman's motion, and to 
give him complete satisfaction by bringing the question to an end. 

Mr. GILES made some remarks in favor of the clause proposed to 
be stricken out. He stated several reasons to show why it should be 
retained ; and concluded by expressing his objection to its being 
stricken out. 

Mr. NICHOLAS hoped the motion made by the gentleman from 
Westmoreland, for expunging the clause in question, would not pre- 
vail. Without that clause, it was true, he would vote for the resolu- 
tions, but his anxiety about them would be very much lessened if it 
was expunged ; for then it would appear, that none of the measures 
of the federal government were objected to but the alien and sedition 
bills. This was not the fact ; and it must also be in the recollection 
of many gentlemen in that house, that some of those members who 
were now most loud in support of the measures of which he and his 
friends complained, and who denied with most confidence the right of 
the assembly to interfere, had themselves upon other occasions acted 
very differently, and justified that interference. One of the gentle- 
men distinguished himself in a particular instance, for which he had 
his most hearty approbation, as he considered it a subject highly in- 
teresting to the happiness of his country. How gentlemen could re- 
concile their opinions at past periods with those they supported at this 
day, it was incumbent upon them to show. Mr. Nicholas said, it was 
with the deepest regret that he reviewed the principal measures of the 
federal government, as they appeared to him to tend directly to a con- 
solidation of the state governments, which he believed would eventu- 
ate in monarchy. Upon all questions about the division of power, 
every thing had been given to the executive from congress, every thing 
to congress from the states. The general phrases in the constitution, 
which were only intended to explain and limit the powers of the ge- 
neral government, have been considered as giving powers, thereby de- 
stroying the effect of the particular enumeration of powers, and of the 
security derived from the twelfth amendment to the constitution. He 



205 

would state the particular acts which he thought most obnoxious. The 
first in point of time were the bank and assumption laws, for which 
he could find no authority in the constitution of the United States, and 
by which the commercial and monied interests of this country had 
been devoted to certain individuals and their theories, and concentred 
a force more powerful and operative than an army of twenty thousand 
men. The British treaty and its effects were so well known to this 
house, that it was unnecessary to dilate upon that subject. The doc- 
trine about appropriations of money was so important in its conse- 
quences, that it merited the most serious attention of the people of 
America. The constitution declares, that " no money shall be drawn 
from the treasury but in consequence of appropriations made by law;" 
notwithstanding which, it is now contended, that the president may 
by his single act bind the congress to make appropriations, whether 
they deem them proper or not, thereby transferring from the represen- 
tatives of the people to the executive magistrate the command of the 
national purse. The stamp act subjects the people to an obnoxious 
and inconvenient tax, and changes already, and may change still more 
hereafter, the system of evidence which the state laws required in their 
own courts. The ultimate effect of this may be to shut up the state 
courts ; for it is even contended, that delivery bonds are subject to the 
tax. If this be true, other process may be taxed, and so highly as 
may amount to a denial of justice : the transferring the important 
powers of borrowing money and raising armies, vested by the consti- 
tution in congress, to the president : the utter neglect of the militia : 
the attempt to render them useless and unnecessary, by raising stand- 
ing armies, and by authorizing the. president to employ any number 
of volunteers that he may think proper, when the only reason for a 
preference of volunteers that occurred to him was, that the president 
had the appointment of the officers of those corps, whereas the militia 
officers were appointed by the state governments, greatly excited his 
suspicion. He confessed, his objections to these corps had been very 
much increased since he had seen a letter from the secretary of war,* 
from which it appeared to him that the design was to arm one part of 
the people against the other. He well remembered, that when the 
constitution was under discussion, great stress was laid upon this cir- 
cumstance; and it was believed it would give great security to the 
state governments, and to the liberties of the people ; but so great a 
revolution had a few years produced, that some gentlemen were wil- 
ling to abandon principles that have been heretofore deemed the most 
sacred. The conduct of the executive in bestowing offices, more in 
the style of rewards for the support of particular measures, than from 



* Extract of a letter from the secretary of icar to an officer of high rank in the mi- 
litia of Virginia, who had communicated the wish of several volunteer companies to 
tender their services. 

" It being deemed important not to accept of companies composed of disaffected 
persons, who might from improper motives be desirous to intrude themselves into 
the army under pretence of patriotic association, it will be proper certificates from 
prominent and known characters, setting forth the principles of the associates, 

those of the officers elect, especially ; and that the company have complied 

with the pre-requisite condition of the law, be also presented." 



206 

any regard to the general merits of the citizens called to fill them, 
and upon the same ground removing from office every man who ven- 
tures to hazard an opinion in opposition to any of the measures that 
have been pursued, necessarily created alarm. He mentioned the re- 
moval from office of Mr. Tenche Coxe and Mr. Gardiner, in support 
of what he had said, and expressed a fear, that by these means that 
numerous and influential class of citizens, who ought to consider 
themselves as the public servants, might be made the creatures of ex- 
ecutive power ; and if, said Mr. Nicholas, the day should ever come 
that the office of president should devolve upon an ambitious man, 
public officers might be made the most powerful instruments to pro- 
mote his views. The influence would operate upon all those who ex- 
pect or want public employment. 

Mr. Nicholas then observed, there was another subject, which he 
felt the greatest pain at mentioning. Nothing but its importance and 
connection with the subject in discussion should induce him to do it. 
The judiciary department of every government should be most pure; 
there should not be a suspicion of a previous bias upon the mind of 
the judge. Every man who goes into a court ought to consider him- 
self as in a sanctuary. The utmost ingenuity of man had been exer- 
cised to form a judiciary that should be beyond the reach of influ- 
ence. Was the conduct of the judiciary what it ought to have been? 
He had always supposed courts were instituted to dispense justice be- 
tween man and man, between individuals and the society; but he 
feared that facts might be stated from which it might be inferred that 
it was considered by some that there were other objects, such as the 
propagating of particular opinions; that there was united in the same 
man the duties of a missionary and of a judge. He said this point of 
his argument was so disagreeable to him, that he would not dwell upon 
it, but would dismiss it with a declaration that he felt great pleasure 
in saying that there were judges to whom he had never heard extra- 
judicial interference in political matters attributed. Mr. Nicholas ob- 
served, that thinking of the measures that he had stated as he did, he 
could not consent to expunge the clause. Indeed, if he did not give 
his full assent to what was stated in that clause he would have been 
willing to confine the efforts of the house to procure the repeal of the 
alien and sedition bills. But considering these as a part of a system 
that brought into jeopardy the dearest interests of his country, he 
thought it was their duty to represent to the other states the whole 
ground of the public uneasiness. As to the alien and sedition laws, 
he had intended at an earlier part of the debate to have made some 
observations, but other gentlemen on the same side with himself, had 
expressed his opinions better than he could have done. He would 
therefore only say that he considered them as unconstitutional, and 
that if the principle was once established that congress have a right 
to make such laws, the tenure by which we hold our liberty would be 
entirely subverted. Instead of rights independent of human control, 
we must be content to hold by the courtesy and forbearance of those 
whom we have heretofore considered as the servants of the people. 
Mr. Nicholas said he had been a member of the convention that 
adopted the constitution ; that he had been uniformly a friend to it ; 



207 

that he considered himself as now acting in support of it; that he 
knew it was the artifice of those on the other side to endeavor to at- 
tach a suspicion of hostility to the government, to those who differed 
with them in opinion. For his part, he despised such insinuations, as 
far as they might be levelled at him. He appealed to his past life and 
to his situation for his justification. Upon what gentlemen's claim 
to exclusive patriotism was founded, he was yet to learn. The friends 
of the resolutions yielded to none in disinterested attachment to their 
country, to the constitution of the United States, to union, and to 
liberty. The conduct and the motives of all would be judged of by 
the people of this country, to whom they were all known. Mr. 
Nicholas had full confidence that the amendment would be rejected, 
and the resolutions without further alteration, would meet the appro- 
bation of a great majority of that house. 

General LEE said, that he wished to refute the observations of the 
gentleman last up, in favor of retaining the clause. (He was proceed- 
ing to do so, when he was interrupted by Mr. Nicholas, who observed 
that the gentleman had misunderstood him, and then declared in sub- 
stance what he had before actually said.) 

After such explanation, general Lee proceeded to justify the mea- 
sures of the general government in respect to the removal of persons 
from office. As to Mr. Coze, as far as he could recollect the circum- 
stances of his conduct, he thought his removal proper. And as to 
Mr. Gardiner, he confessed it was a case with which he was quite 
unacquainted. In respect to the judiciary being forward in deliver- 
ing their opinions on public measures, he would observe that the 
state judges had done, and still did the same. He blamed them not 
for it. For the appointment of men as judges did not deprive them 
of their rights as citizens. But nothing of this kind, he said, would 
prove the propriety of the clause proposed to be stricken out. 

General Lee then observed, that he considered the argument of the 
gentleman from Amelia, in respect to the connexion between the alien 
law, and the law concerning volunteers, weak. For his army of 
aliens being soldiers by compulsion, would turn against the president 
instead of assisting him. The gentleman too, had called in question 
the ends which the government had in view in raising an army and 
navy. General Lee proceeded to answer the objections upon that 
head, by pointing out those ends. As to the alien and sedition laws, 
he contended that the only real view in passing them, was to protect 
us from foreign invasion. He denied that there was an inclination in 
the general government to crush a party. The construction placed 
by the gentleman from Amelia, upon the president's answer to the ad- 
dress of the people of Bath was erroneous. General Lee then read 
part of that answer, and placed a different construction upon the ex- 
pressions which it contained. He conceived the president's meaning 
only to be, that it depended upon Virginia to say whether or not there 
was a party in the United States to be crushed, &c. ; not positively 
asserting on his part that there was such a party. 

General Lee then observed, that if the people could govern them- 
selves, how could that be done but by obedience to the laws ? Their 



208 

freedom could not be preserved by any other mode. For if the prin- 
ciple of obeying the will of the majority was once destroyed, it would 
prostrate all free government. But the gentleman from Amelia had 
considered himself as one of the party to be crushed, alluded to by 
the president. He (general Lee) was surprised at such an idea. 
That gentleman had committed no crime. He had for some time be- 
fore been honored with a seat in congress. And there, although he 
had generally been in a minority, yet it was nothing more than the 
situation in which he (general Lee) had often been placed here. In 
neither was there any criminality. A difference, it was true, did 
exist between these cases ; and he derived consolation from reflecting, 
that though he himself was in a minority here, he was still in a ma- 
jority with that body which properly had the determination of national 
matters. He concluded with hoping that the amendment would pre- 
vail. 

Mr. TYLER arose next, and said that an able general would fight 
and struggle to the last. When driven from one stronghold, he would 
retreat to another; and finding himself no longer able to oppose supe- 
rior numbers, he would attempt to divide his enemy. Mr. Tyler be- 
lieved the plan on the present occasion, was to divide the republican 
members, but he hoped the gentleman's plan would not succeed ; and 
that the clause would be retained. He thought it contained solemn 
truths. He doubted not but that many of the measures of the gene- 
ral government had a tendency to monarchy, absolute or limited. 
These measures had been pointed out by the gentleman from Albe- 
marle. He would however state them over again. Mr. Tyler did so. 
He particularly relied on the growing influence of the executive, and 
the probability of an alliance with a corrupt monarchy, and an open 
rupture with a republic, which he said had been openly advocated by 
gentlemen of high character. He enquired what had been the effects 
of executive influence in Great Britain? He said, that by the revo- 
lution of 168S, and by several statutes of parliament passed about 
that time, many of the great rights of the people, and the principles 
of freedom, had been established ; but that it might at this time be 
well doubted if the people were more free than they were before the 
revolution. This was to be ascribed to the immense influence of the 
crown, which had three millions at disposal. He demanded what 
other cause had prevented a reform in parliament, upwards of three 
hundred of whose members were chosen by a fewer number of elec- 
tors. He asked if there was not some similitude between the systems 
pursued by our administration and that of Great Britain ? He said 
that the people of Great Britain were clamorous for peace, and lord 
Malmesbury was sent to make peace ; but he returned and made no 
peace. He would not follow the comparison. Our fears, he said, 
had beeen assailed. He enquired whom were we to fear? He feared 
no man, and no measure, but that of offending the people; and he 
believed that the people were never offended at any effort to maintain 
their rights, or to protect their liberties. The gentleman from West- 
moreland had said, that the gentleman from Amelia could not con- 
sider himself as one of the party to be crushed, and had asked what 



209 

crime that gentleman had committed. Mr. Tyler said, that the gen- 
tleman from Amelia had committed a crime ; the crime of differing 
in opinion with the administrators of the government. This was the 
crime that had incarcerated Mr. Lyon. He asked what prospect 
have we of a change of these measures, which he viewed as the har- 
bingers, the forerunners of monarchy, either limited or abolute. Were 
we not told that they must have more men, and a little more money ; 
augment our standing army, and increase our navy ; and force the 
construction of the constitution to warrant alien and sedition bills? 
Mr. Tyler concluded by hoping that the clause would be retained. 
He believed it contained the truth, and was very important; and 
thought that the people of Virgina called for some such measure. 

Mr. John Taylor's resolutions as amended, agreed to by the com- 
mittee, and reported to the house, are as follows : 

Resolved, That the general assembly of Virginia doth unequivocally 
express a firm resolution to maintain and defend the constitution of 
the United States, and the constitution of this state, against every ag- 
gression, either foreign or domestic, and that they will support the 
government of the United States in all measures warranted by the 
former. 

That this assembly most solemnly declares a warm attachment to 
the union of the states, to maintain which, it pledges all its powers; 
and that for this end it is their duty to watch over and oppose every 
infraction of those principles, which constitute the only basis of that 
union, because a faithful observance of them can alone secure its ex- 
istence, and the public happiness. 

That this assembly doth explicitly and peremptorily declare that it 
views the powers of the federal government as resulting from the com- 
pact, to which the states are parties, as limited by the plain sense 
and intention of the instrument constituting that compact ; as no fur- 
ther valid than they are authorized by the grants enumerated in that 
compact; and that in case of a deliberate, palpable and dangerous 
exercise of other powers not granted by the said compact, the states, 
who are parties thereto, have the right, and are in duty bound, to in- 
terpose for arresting the progress of the evil, and for maintaining 
within their respective limits, the authorities, rights and liberties ap- 
pertaining to them. 

That the general assembly doth also express its deep regret that a 
spirit has in sundry instances been manifested by the federal govern- 
ment, to enlarge its powers by forced constructions of the constitu- 
tional charter which defines them ; and that indications have appeared 
of a design to expound certain general phrases (which having been 
copied from the very limited grant of powers in the former articles of 
confederation, were the less liable to be misconstrued,) so as to destroy 
the meaning and effect of the particular enumeration, which necessarily 
explains and limits the general phrases, and so as to consolidate the 
states by degrees into one sovereignty, the obvious tendency and inevi- 
table result of which would be to transform the present republican sys- 
tem of the United States into an absolute, or at best a mixed monarchy. 
27 



210 

That the general assembly doth particularly protest against the pal- 
pable and alarming infractions of the constitution, in the two late cases 
of the " alien and sedition acts," passed at the last session of congress, 
the first of which exercises a power no where delegated to the federal 
government ; and which by uniting legislative and judicial powers to 
those of executive, subverts the general principles of free government, 
as well as the particular organization and positive provisions of the 
federal constitution ; and the other of which acts exercises in like 
manner a power not delegated by the constitution, but on the contrary 
expressly and positively forbidden by one of the amendments thereto ; 
a power which more than any other ought to produce universal alarm, 
because it is levelled against that right of freely examining public cha- 
racters and measures, and of free communication among the people 
thereon, which has ever been justly deemed the only effectual guardian 
of every other right. 

That this state having by its convention which ratified the federal 
constitution, expressly declared, "that among other essential rights, 
the liberty of conscience and of the press cannot be cancelled, abridged, 
restrained or modified by any authority of the United States," and from 
its extreme anxiety to guard these rights from every possible attack of 
sophistry or ambition, having with other states recommended an amend- 
ment for that purpose, which amendment was in due time annexed to 
the constitution, it would mark a reproachful inconsistency and crimi- 
nal degeneracy, if an indifference were now shown to the most palpa- 
ble violation of one of the rights thus declared and secured, and to the 
establishment of a precedent which may be fatal to the other. 

That the good people of this commonwealth having ever felt, and 
continuing to feel the most sincere affection to their brethren of the 
other states, the truest anxiety for establishing and perpetuating the 
union of all, and the most scrupulous fidelity to that constitution which 
is the pledge of mutual friendship, and the instrument of mutual hap- 
piness, the general assembly doth solemnly appeal to the like disposi- 
tions of the other states, in confidence that they will concur with this 
commonwealth in declaring, as it does hereby declare, that the acts 
aforesaid are unconstitutional, and that the necessary and proper mea- 
sures will be taken by each, for co-operating with this state in main- 
taining unimpaired the authorities, rights and liberties reserved to the 
states respectively, or to the people. 

That the governor be desired to transmit a copy of the foregoing 
resolutions to the executive authority of each of the other states, with a 
request that the same may be communicated to the legislature thereof. 

And that a copy be furnished to each of the senators and represen- 
tatives representing this state in the congress of the United States. 

The said resolutions being read the second time, a motion was made, 
and the question being put, to amend the same by expunging from 
them the fourth clause in the following words : 

" That the general assembly doth also express its deep regret, that 
a spirit has in sundry instances, been manifested by the federal go- 
vernment to enlarge its powers by forced constructions of the consti- 
tutional charter which defines them ; and that indications have ap- 
peared of a design to expound certain general phrases (which having 



211 

been copied from the very limited grant of powers in the former arti« 
cles of confederation, were the less liable to be misconstrued) so as to 
destroy the meaning and effect of the particular enumeration, which 
necessarily explains and limits the general phrases, and so as to con- 
solidate the states by degrees into one sovereignty, the obvious ten- 
dency and inevitable result of which would be to transform the pre- 
sent republican system of the United States into an absolute, or at 
best a mixed monarchy." 

It passed in the negative, ayes 68 — noes 96. 

On a motion made by general Lee, seconded by Mr. Boiling, or- 
dered, that the names of the ayes and noes on the foregoing question 
be inserted in the journal. 

The names of those who voted in the affirmative, are Messieurs 
Bailey, Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, 
Tate, Baker, Breckenridge, M'Guire, Moorman, Spencer, Bedford, 
Harrison, Herbert, Magill, Bynum, Reives, John Mathews, Cavendish, 
Royal, Snyder, King, Fisher, Simons, Godwin, Young, Richard Cor- 
bin, Thomas Lewis, Turner, Wallace, Pollard, Gregory, Powell, Clap- 
ham, Cowan, Evans, Ingles, James Taylor, Watkins, Upshur, Darby, 
Claughton, Clarke, Divan, Cureton, George K. Taylor, Brooke, Ro- 
binson, Ellegood, M'Coy, Coonrod, Wilson, Glasscock, Caruthers, An- 
drew Alexander, Davis, Charles Lewis, Blow, Booth, Lee, Bradley, 
Drope, Crockett, Griffin, Andrews — 68. 

And the names of those who voted in the negative, are Messieurs 
Cabell, Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, 
Colwell, Perrow, John Taylor, Buckner, Tyler, Cheatham, Thomas 
A. Taylor, Daniel, Roberts, Shackelford, Peterson Goodwyn, Pegram, 
Booker, Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer, 
Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, M'Kinzie, 
Starke, Thompson, Jackson, Prunty, Selden, Price, Martin, Redd, 
John Allen, Tazewell, Shearman, Joseph Carter, Callis, Meriwether, 
Chad well, Francis Eppes, Hudgins, Litchfield, Roebuck, Hill, Nelson, 
Mark Alexander, Segar, Richard H. Corbin, Scott, Butt, James S. 
Mathews, Willis Riddick, Josiah Riddick, Semple, Hurst, Freeman 
Eppes, Dupuy, M'Kinley, Barbour, Wright, Moseley, Woodson, Pur- 
nail, Johnston, Pope, Rentfro, William Carter, Hadden, Barnes, Cock- 
rell, Browning, Gatewood, Dulaney, Mercer, Stannard, Nathaniel Fox, 
John Fox, Faulcon, Seward, Mason, Cary, Burnham, Hungerford, 
Meek, Shield, Foushee, Newton— 96. 

A motion was then made, and the question being put, to amend the 
said resolutions, by striking out from the word " Resolved," to the end 
of the same, and inserting in lieu thereof the following words : 

" That as it is established by the constitution of the United States, 
that the people thereof have a right to assemble peaceably, and to pe- 
tition the government for a redress of grievances, it therefore appears 
properly to belong to the people themselves to petition, when they con- 
sider their rights to be invaded by any acts of the general government ; 
and it should be left to them, if they conceive the laws lately passed 
by the congress of the United States, commonly called the " alien and 
sedition laws," to be unconstitutional, or an invasion of their rights, 
to petition for a repeal of the said laws." 



212 

It also passed in the negative, ayes 60 — noes 104. 

On a motion made by Mr. Brooke, seconded by Mr. Griffin, ordered, 
that the names of the ayes and noes on the foregoing question be in- 
serted in the journal. 

The names of those who voted in the affirmative, are Messieurs 
Bailey/ Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, 
Tate, Baker, Breckenridge, M'Guire, Moorman, Spencer, Herbert, 
Magill, Bynum, Reives, J. Mathews, Cavendish, Royall, Snyder, King, 
Fisher, Simons, Nelson, Evans, Ingles, Jas. Taylor, Watkins, Upshur, 
Darby, Clarke, Divan, Cureton, George K. Taylor, Brooke, Robinson, 
Ellegood, M'Coy, Coonrod, Wilson, Davis, Charles Lewis, Blow, 
Booth, Lee, Bradley, Drope, Crockett, Griffin, Andrews, Godwin, Tho- 
mas Lewis, Turner, Wallace, Pollard, Powell, Clapham, Cowan — 60. 

And the names of those who voted in the negative, are Messieurs 
Cabell, Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, 
Colwell, Perrow, John Taylor, Buckner, Bedford, Harrison, Tyler, 
Cheatham, Thomas A. Taylor, Daniel, Roberts, Shackelford, Peter- 
son Goodwyn, Pegram, Booker, Daingerfield, Webb, Jennings, Hor- 
ner, Haden, Payne, Greer, Benjamin Cooke, Hall, Pleasants, Heath 
I. Miller, Jones, M'Kinzie, Starke, Thompson, Jackson, Prunty, Sel- 
den, Price, Martin, Redd, John Allen, Tazewell, Young, Richard 
Corbin, Gregory, Shearman, Joseph Carter, Callis, Meriwether, Chad- 
well, Francis Eppes, Hudgins, Litchfield, Roebuck, Hill, Mark Alex- 
ander, Segar, Richard H. Corbin, Scott, Butt, James S. Mathews, W. 
Riddick, J. Riddick, Semple, Hurst, Claughton, Freeman Eppes, Du- 
puy, M'Kinley, Barbour, Wright, Moseley, Woodson, Purnall, John- 
ston, Pope, Rentfro, William Carter, Hadden, Barnes, Glasscock, Ca- 
ruthers, Andrew Alexander, Cockrell, Browning, Gatewood, Dulaney, 
Mercer, Stannard, Nathaniel Fox, John Fox, Faulcon, Seward, Mason, 
Cary, Burnham, Hungerford, Meek, Shield, Foushee, Newton — 104. 

And then the main question being put, that the house do agree 
with the committee of the whole house in the resolutions as reported, 

It passed in the affirmative, ayes 100 — noes 63. 

On a motion made by Mr. John Taylor, seconded by Mr. Nicholas, 
ordered, that the names of the ayes and noes on the foregoing ques- 
tion be inserted in the journal. 

The names of those who voted in the affirmative, are Messieurs 
Cabell, Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, 
Colwell, Perrow, John Taylor, Buckner, Harrison, Tyler, Cheatham, 
Thomas A. Taylor, Daniel, Roberts, Shackelford, P. Goodwyn, Pe- 
gram, Booker, Daingerfield, Webb, Jennings, Horner, Haden, Payne, 
Greer, Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, 
M'Kinzie, Starke, Thompson, Jackson, Prunty, Selden, Price, Mar- 
tin, Redd, John Allen, Tazewell, Young, Richard Corbin, Gregory, 
Shearman, Joseph Carter, Callis, Meriwether, Chadwell, Francis 
Eppes, Hudgins, Litchfield, Roebuck, Hill, Mark Alexander, Segar, 
Richard H. Corbin, Scott, Butt, James S. Mathews, W. Riddick, J. 
Riddick, Semple, Hurst, Claughton, Freeman Eppes, Dupuy, M'Kin- 
ley, Barbour, Wright, Moseley, Woodson, Purnall, Johnston, Pope, 
Rentfro, William Carter, Hadden, Glasscock, Cockrell, Browning, 
Gatewood, Dulaney, Mercer, Stannard, Nathaniel Fox, John Fox, 



213 

Faulcon, Seward, Mason, Cary, Burnham, Hungerford, Meek, Shield, 
Foushee, Newton — 100. 

And the names of those who voted in the negative, are Messieurs 
Bailey, Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, 
Tate, Baker, Breckenridge, M'Guire, Moorman, Spencer, Bedford, 
Herbert, Magill, Bynum, Reives, John Mathews, Cavendish, Snyder, 
King, Fisher, Simons, Godwin, Thomas Lewis, Turner, Wallace, 
Pollard, William Clarke, Royall, Powell, Clapham, Cowan, Nelson, 
Evans, Ingles, James Taylor, Watkins, Upshur, Darby, Divan, Cure- 
ton, George K. Taylor, Brooke, Robinson, Ellegood, M'Coy, Coon rod, 
Wilson, Caruthers, Andrew Alexander, Davis, Charles Lewis, Blow, 
Booth, Lee, Bradley, Drope, Crockett, Griffin and Andrews — 63. 

The house then ordered that the clerk do carry the said resolutions 
to the senate for their concurrence. 



IN SENATE, 
Monday, December 24, 1798. 

The house, according to the order of the day, resolved itself into 
a committee of the whole house, on the resolutions of the house of 
delegates, concerning certain acts of the congress of the United 
States, passed at their last session ; and after some time spent therein, 
Mr. Speaker resumed the chair, and Mr. Preston reported, that the 
committee had, according to order, taken the said resolutions under 
their consideration, and had gone through the same, and directed him 
to report the same without any amendment. 

A motion was then made to amend the fifth resolution, by striking 
out the words " two late cases of the alien and" and on the question 
to agree to the same, 

It passed in the negative — Ayes 5, noes 12. 

The ayes and noes were required on the above question. 

Ayes — Burwell Bassett, Francis Peyton, Benjamin Temple, John 
Haymond, John Eyre — 5. 

Noes — Creed Taylor, Richard Kennon, Thomas Royster, Archi- 
bald Stewart, French Strother, Hugh Holmes, George Carrington, 
John Preston, John Hoomes, Thomas Newton, Nicholas Cabell, 
George Penn — 12. 

And then the main question being put, that the house do agree to 
the said resolutions, 

It was resolved in the affirmative. Ayes 14, noes 3. 

Ordered^ That the clerk do acquaint the house of delegates there- 
with. 

On the above question the ayes and noes were required. 

Ayes — Creed Taylor, Richard Kennon, Burwell Bassett, Thomas 
Royster, Archibald Stewart, French Strother, Hugh Holmes, George 
Carrington, John Preston, John Hoomes, Benjamin Temple, Thomas 
Newton, Nicholas Cabell, George Penn — 14. 

Noes — Francis Peyton, John Haymond, John Eyre — 3. 



214 

An act concerning Aliens. 
[Approved June 25, 1798.] 

Section 1. Be it enacted by the senate and house of representa- 
tives of the United States of America, in congress assembled, That 
it shall be lawful for the president of the United States, at any time 
during the continuance of this act, to order all such aliens as he shall 
judge dangerous to the peace and safety of the United States, or shall 
have reasonable grounds to suspect are concerned in any treasonable 
or secret machinations against the government thereof, to depart out 
of the territory of the United States, within such time as shall be ex- 
pressed in such order; which order shall be served on such alien, by 
delivering him a copy thereof, or leaving the same at his usual abode, 
and returned to the office of the secretary of state, by the marshal, or 
other person, to whom the same shall be directed. And in case any 
alien, so ordered to depart, shall be found at large within the United 
States, after the time limited in such order for his departure, and not 
having obtained a license from the president to reside therein, or having 
obtained such license, shall not have conformed thereto, every such 
alien shall, on conviction thereof, be imprisoned for a term not exceed- 
ing three years, and shall never after be admitted to become a citizen 
of the United States : Provided always, and be it further enacted, 
That if any alien so ordered to depart, shall prove, to the satisfaction 
of the president, by evidence, to be taken before such person or per- 
sons as the president shall direct, who are for that purpose hereby au- 
thorized to administer oaths, that no injury or danger to the United 
States will arise from suffering such alien to reside therein, the presi- 
dent may grant a license to such alien to remain within the United 
States for such time as he shall judge proper, and at such place as he 
may designate. And the president may also require of such alien to 
enter into a bond to the United States, in such penal sum as he may 
direct, with one or more sufficient sureties, to the satisfaction of the 
person authorized by the president to take the same, conditioned for 
the good behaviour of such alien during his residence in the United 
States, and not violating his license, which license the president may 
revoke whenever he shall think proper. 

Sec. 2. And be it further enacted, That it shall be lawful for the 
president of the United States, whenever he may deem it necessary 
for the public safety, to order to be removed out of the territory thereof, 
any alien who may or shall be in prison in pursuance of this act ; and 
to cause to be arrested and sent out of the United States, such of 
those aliens as shall have been ordered to depart therefrom, and shall 
not have obtained a licence as aforesaid, in all cases where, in the 
opinion of the president, the public safety requires a speedy removal. 
And if any alien so removed or sent out of the United States by the 
president, shall voluntarily return thereto, unless by permission of the 
president of the United States, such alien, on conviction thereof, shall 
be imprisoned so long as, in the opinion of the president, the public 
safety may require. 



215 

Sec. 3. And be it further enacted, That every master or comman- 
der of any ship or vessel which shall come into any port of the United 
States after the first day of July next, shall immediately on his arri- 
val make report in writing to the collector or other chief officer of the 
customs of such port, of all aliens, if any on board his vessel, specify- 
ing their names, age, the place of nativity, the country from which 
they shall have come, the nation to which they belong and owe alle- 
giance, their occupation and a description of their persons, as far as 
he shall be informed thereof, and on failure every such master and 
commander shall forfeit and pay three hundred dollars, for the pay- 
ment whereof, on default of such master or commander, such vessel 
shall also be holden, and may by such collector or other officer of the 
customs be detained. And it shall be the duty of such collector or 
other officer of the customs, forthwith to transmit to the office of the 
department of state true copies of all such returns. 

Sec. 4. And be it further enacted, That the circuit and district 
courts of the United States shall respectively have cognizance of all 
crimes and offences against this act. And all marshals and other of- 
ficers of the United States are required to execute all precepts and 
orders of the president of the United States, issued in pursuance or 
by virtue of this act. 

Sec. 5. And be it further enacted, That it shall be lawful for any 
alien who may be ordered to be removed from the United States, by 
virtue of this act, to take with him such part of his goods, chattels, or 
other property, as he may find convenient ; and all property left in the 
United States, by any alien who may be removed as aforesaid, shall 
be and remain subject to his order and disposal, in the same manner 
as if this act had not been passed. 

Sec. 6. And be it further enacted, That this act shall continue 
and be in force for and during the term of two years from the passing 
thereof. 



An act in addition to the act, intituled, " An act for the punishment 
of certain crimes against the United States." 

[Approved July 14, 1798.] 

Sec. I. Be it enacted by the senate and house of representatives of 
the United States of America, in congress assembled, That if any per- 
sons shall unlawfully combine or conspire together, with intent to op- 
pose any measure or measures of the government of the United States, 
which are or shall be directed by proper authority, or to impede the 
operation of any law of the United States, or to intimidate or prevent 
any person holding a place or office in or under the government of the 
United States, from undertaking, performing, or executing his trust or 
duty ; and if any person or persons, with intent as aforesaid, shall 
counsel, advise, or attempt to procure any insurrection, riot, unlawful 



216 

assembly, or combination, whether such conspiracy, threatening, coun- 
sel, advice, or attempt, shall have the proposed effect or not, he or they 
shall be deemed guilty of a high misdemeanor, and on conviction be- 
fore any court of the United States having jurisdiction thereof, shall 
be punished by a fine not exceeding five thousand dollars, and by im- 
prisonment during a term not less than six months, nor exceeding five 
years ; and further, at the discretion of the court may be holden to 
find sureties for his good behaviour, in such sum, and for such time, 
as the said court may direct. 

Sec. 2. And be it further enacted, That if any person shall write, 
print, utter or publish, or shall cause or procure to be written, printed, 
uttered or published, or shall knowingly and willingly assist or aid in 
writing, printing, uttering or publishing any false, scandalous and ma- 
licious writing or writings against the government of the United States, 
or either house of the congress of the United States, or the president 
of the United States, with intent to defame the said government, or 
either house of the said congress, or the said president, or to bring 
them, or either of them, into contempt or disrepute ; or to excite 
against them, or either or any of them, the hatred of the good people 
of the United States, or to stir up sedition within the United States ; 
or to excite any unlawful combinations therein, for opposing or resist- 
ing any law of the United States, or any act of the president of the 
United States, done in pursuance of any such law, or of the powers 
in him vested by the constitution of the United States ; or to resist, 
oppose or defeat any such law or act ; or to aid, encourage or abet any 
hostile designs of any foreign nation against the United States, their 
people or government, then such person, being thereof convicted be- 
fore any court of the United States having jurisdiction thereof, shall 
be punished by a fine not exceeding two thousand dollars, and by im- 
prisonment not exceeding two years. 

Sec. 3. And be it further enacted and declared, That if any per- 
son shall be prosecuted under this act, for the writing or publishing 
any libel aforesaid, it shall be lawful for the defendant, upon the trial 
of the cause, to give in evidence in his defence, the truth of the mat- 
ter contained in the publication charged as a libel. And the jury who 
shall try the cause, shall have a right to determine the law and the fact, 
under the direction of the court, as in other cases. 

Sec. 4. And be it further enacted, That this act shall continue and 
be in force until the third day of March, one thousand eight hundred 
and one, and no longer : Provided, That the expiration of the act 
shall not prevent or defeat a prosecution and punishment of any offence 
against the law, during the time it shall be in force. 



APPENDIX. 



Mr. Madison to Mr. Everett. 

MoNTPELIER, AugUSt 1830. 

Dear Sir, 

I have duly received your letter, in which you refer to 
the " nullifying doctrine," advocated as a constitutional right, by some 
of our distinguished fellow-citizens ; and to the proceedings of the 
Virginia legislature in '98 and '99, as appealed to in behalf of that 
doctrine ; and you express a wish for my ideas on those subjects. 

I am aware of the delicacy of the task in some respects, and the 
difficulty in every respect, of doing full justice to it. But having in 
more than one instance, complied with a like request from other 
friendly quarters, I do not decline a sketch of the views which I have 
been led to take of the doctrine in question, as well as some others 
connected with them ; and of the grounds from which it appears, that 
the proceedings of Virginia have been misconceived by those who 
have appealed to them. In order to understand the true character 
of the constitution of the United States, the error, not uncommon, 
must be avoided, of viewing it through the medium, either of a con- 
solidated government, or of a confederated government, whilst it is 
neither the one nor the other, but a mixture of both. And having, in 
no model, the similitudes and analogies applicable to other systems of 
government, it must, more than any other, be its own interpreter, ac- 
cording to its text and the facts of the case. 

From these it will be seen, that the characteristic peculiarities of 
the constitution are, 1, the mode of its formation; 2, the division of 
the supreme powers of government between the states in their united 
capacity, and the states in their individual capacities. 

1. It was formed, not by the governments of the component states, 
as the federal government for which it was substituted was formed. 
Nor was it formed by a majority of the people of the United States, 
as a single community, in the manner of a consolidated government. 

It was formed by the states, that is, by the people in each of the 
states, acting in their highest sovereign capacity ; and formed conse- 
quently by the same authority which formed the state constitutions. 

Being thus derived from the same source as the constitutions of the 
states, it has, within each state, the same authority as the constitution 
of the state, and is as much a constitution in the strict sense of the 
term within its prescribed sphere, as the constitutions of the states 
are within their respective spheres ; but with this obvious and essen- 
tial difference, that being a compact among the states in their highest 
sovereign capacity, and constituting the people thereof one people for 
certain purposes, it cannot be altered or annulled at the will of the 
28 



218 

states individually, as the constitution of a state may be at its indi- 
vidual will. 

2. And that it divides the supreme powers of government, between 
the government of the United States, and the governments of the in- 
dividual states, is stamped on the face of the instrument; the powers 
of war and of taxation, of commerce and of treaties, and other enu- 
merated powers vested in the government of the United States, being 
of as high and sovereign a character as any of the powers reserved to 
the state governments. 

Nor is the government of the United States, created by the consti- 
tution, less a government in the strict sense of the term, within the 
sphere of its powers, than the governments created by the constitu- 
tions of the states are, within their several spheres. It is like them 
organized into legislative, executive and judiciary departments. It 
operates, like them, directly on persons and things. And like them, 
it has at command a physical force for executing the powers commit- 
ted to it. The concurrent operation in certain cases, is one of the 
features marking the peculiarity of the system. 

Between these different constitutional governments, the one opera- 
ting in all the states, the others operating separately in each, with the 
aggregate powers of government divided between them, it could not 
escape attention, that controversies would arise concerning the boun- 
daries of jurisdiction, and that some provision ought to be made for 
such occurrences. A political system that does not provide for a 
peaceable and authoritative termination of occurring controversies, 
would not be more than the shadow of a government; the object and 
end of a real government being, the substitution of law and order, for 
uncertainty, confusion, and violence. 

That to have left a final decision in such cases, to each of the 
states, then thirteen, and already twenty-four, could not fail to make 
the constitution and laws of the United States different in different 
states, was obvious; and not less obvious, that this diversity of inde- 
pendent decisions, must altogether distract the government of the 
union, and speedily put an end to the union itself. A uniform autho- 
rity of the laws, is in itself a vital principle. Some of the most impor- 
tant laws could not be partially executed. They must be executed in 
all the states, or they could be duly executed in none. An impost, 
or an excise, for example, if not in force in some states, would be de- 
feated in others. It is well known that this was among the lessons 
of experience, which had a primary influence in bringing about the 
existing constitution. A loss of its general authority would moreover 
revive the exasperating questions between the states holding ports for 
foreign commerce, and the adjoining states without them ; to which 
are now added, all the inland states, necessarily carrying on their fo- 
reign commerce through other states. 

To have made the decisions under the authority of the individual 
states, co-ordinate, in all cases, with decisions under the authority of 
the United States, would unavoidably produce collisions incompatible 
with the peace of society, and with that regular and efficient adminis- 
tration, which is of the essence of free governments. Scenes could not 
be avoided, in which a ministerial officer of the United States, and 



219 

the correspondent officer of an individual state, would have rencoun- 
ters in executing conflicting decrees; the result of which would de- 
pend on the comparative force of the local posses attending them ; 
and that, a casualty depending on the political opinions and party 
feelings in different states. 

To have referred every clashing decision, under the two authorities, 
for a final decision, to the states as parties to the constitution, would 
be attended with delays, with inconveniences and with expenses, 
amounting to a prohibition of the expedient; not to mention its ten- 
dency to impair the salutary veneration for a system requiring such 
frequent interpositions, nor the delicate questions which might pre- 
sent themselves as to the form of stating the appeal, and as to the 
quorum for deciding it. 

To have trusted to negotiation for adjusting disputes between the 
government of the United States and the state governments, as be- 
tween independent and separate sovereignties, would have lost sight 
altogether of a constitution and government for the union ; and opened 
a direct road from a failure of that resort, to the ultima ratio between 
nations wholly independent of and alien to each other. If the idea 
had its origin in the process of adjustment, between separate branches 
of the same government, the analogy entirely fails. In the case of 
disputes between independent parts of the same government, neither 
part being able to consummate its will, nor the government to proceed 
without a concurrence of the parts, necessity brings about an accom- 
modation. In disputes between a state government, and the govern- 
ment of the United States, the case is practically as well as theoreti- 
cally different ; each party possessing all the departments of an orga- 
nized government, legislative, executive and judiciary; and having 
each a physical force to support its pretensions. Although the issue 
of negotiation might sometimes avoid this extremity, how often would 
it happen among so many states, that an unaccommodating spirit in 
some would render that resource unavailing? A contrary supposition 
would not accord with a knowledge of human nature, or the evidence 
of our own political history. 

The constitution not relying on any of the preceding modifications, 
for its safe and successful operation, has expressly declared, on the 
one hand, 1, "that the constitution, and the laws made in pursuance 
thereof, and all treaties made under the authority of the United 
States, shall be the supreme law of the land ; 2, that the judges of 
every state shall be bound thereby, any thing in the constitution and 
laws of any state, to the contrary notwithstanding ; 3, that the judi- 
cial power of the United States shall extend to all cases in law and 
equity arising under the constitution, the laws of the United States, 
and treaties made under their authority, &c." 

On the other hand, as a security of the rights and powers of the 
states in their individual capacities, against an undue preponderance 
of the powers granted to the government over them in their united 
capacity, the constitution has relied on, 1, the responsibility of the 
senators and representatives in the legislature of the United States to 
the legislatures and people of the states ; 2, the responsibility of the 
president to the people of the United States ; and 3, the liability of 



220 

the executive and judicial functionaries of the United States to im- 
peachment by the representatives of the people of the states in one 
branch of the legislature of the United States, and trial by the repre- 
sentatives of the states, in the other branch ; the state functionaries, 
legislative, executive and judicial, being, at the same time, in their 
appointment and responsibility, altogether independent of the agency 
or authority of the United States. 

How far this structure of the government of the United States is ade- 
quate and safe for its objects, time alone can absolutely determine. Ex- 
perience seems to have shown, that whatever may grow out of future 
stages of our national career, there is, as yet, a sufficient control, in 
the popular will, over the executive and legislative departments of the 
government. When the alien and sedition laws were passed in con- 
travention to the opinions and feelings of the community, the first 
elections that ensued put an end to them. And whatever may have 
been the character of other acts, in the judgment of many of us, it 
is but true, that they have generally accorded with the views of a 
majority of the states and of the people. At the present day it seems 
well understood, that the laws which have created most dissatisfaction, 
have had a like sanction without doors ; and that, whether continued, 
varied or repealed, a like proof will be given of the sympathy and re- 
sponsibility of the representative body, to the constituent body. In- 
deed, the great complaint now is, against the results of this sympathy 
and responsibility in the legislative policy of the nation. 

With respect to the judicial power of the United States, and the 
authority of the supreme court in relation to the boundary of jurisdic- 
tion between the federal and the state governments, I may be per- 
mitted to refer to the thirty-ninth number of the " Federalist,* for the 
light in which the subject was regarded by its writer, at the period 
when the constitution was depending; and it is believed, that the 
same was the prevailing view then taken of it, that the same view 
has continued to prevail, and that it does so at this time, notwithstand- 
ing the eminent exceptions to it. 

But it is perfectly consistent with the concession of this power to 
the supreme court in cases falling within the course of its functions, 
to maintain that the power has not always been rightly exercised. 
To say nothing of the period, happily a short one, when judges in 
their seats did not abstain from intemperate and party harangues, 
equally at variance with their duty and their dignity ; there have been 
occasional decisions from the bench, which have incurred serious and 
extensive disapprobation. Still it would seem, that, with but few ex- 



* No. 39. It is true, that in controversies relating to the boundary between the 
two jurisdictions, the tribunal which is ultimately to decide, is to be established 
under the general government. But this does not change the principle of the 
case. The decision is to be impartially made, according to the rules of the consti- 
tution ; and all the usual and most effectual precautions are taken to secure this 
impartiality. Some such tribunal is clearly essential to prevent an appeal to the 
sword, and a dissolution of the compact ; and that it ought to be established under 
the general, rather than under the local governments ; or, to speak more properly, 
that it could be safely established under the first alone, is a position not likely 
to be combatted. 



221 

ceptions, the course of the judicary has been hitherto sustained by 
the predominant sense of the nation. 

Those who have denied or doubted the supremacy of the judicial 
power of the United States, and denounce at the same time a nullify- 
ing power in a state, seem not to have sufficiently adverted to the ut- 
ter inefficiency of a supremacy in a law of the land, without a supre- 
macy in the exposition and execution of the law ; nor to the destruc- 
tion of all equipoise between the federal government and the state go- 
vernments, if, whilst the functionaries of the federal government are 
directly or indirectly elected by and responsible to the states, and the 
functionaries of the states are in their appointment and responsibility 
wholly independent of the United States, no constitutional control of 
any sort belonged to the United States over the states. Under such 
an organization, it is evident that it would be in the power of the 
states, individually, to pass unauthorized laws, and to carry them into 
complete effect, any thing in the constitution and laws of the United 
States to the contrary notwithstanding. This would be a nullifying 
power in its plenary character ; and whether it had its final effect, 
through the legislative, executive or judiciary organ of the state, 
would be equally fatal to the constituted relation between the two go- 
vernments. 

Should the provisions of the constitution as here reviewed, be found 
not to secure the government and rights of the states, against usurpa- 
tions and abuses on the part of the United States, the final resort 
within the purview of the constitution, lies in an amendment of the 
constitution, according to a process applicable by the states. 

And in the event of a failure of every constitutional resort, and an 
accumulation of usurpations and abuses, rendering passive obedience 
and non-resistance a greater evil, than resistance and revolution, there 
can remain but one resort, the last of all; an appeal from the cancelled 
obligations of the constitutional compact, to original rights and the 
law of self-preservation. This is the ultima ratio under all govern- 
ments, whether consolidated, confederated, or a compound of both ; 
and it cannot be doubted that a single member of the union, in the 
extremity supposed, but in that only, would have a right, as an extra 
and ultra-constitutional right to make the appeal. 

This brings us to the expedient lately advanced, which claims for a 
-single state a right to appeal against an exercise of power by the go- 
vernment of the United States decided by the state to be unconstitu- 
tional, to the parties to the constitutional compact ; the decision of the 
state to have the effect of nullifying the act of the government of the 
United States, unless the decision of the state be reversed by three 
fourths of the parties. 

The distinguished names and high authorities which appear to 
have asserted and given a practical scope to this doctrine, entitle it to 
a respect which it might be difficult otherwise to feel for it. 

If the-doctrine were to be understood as requiring the three fourths 
of the states to sustain, instead of that proportion to reverse the de- 
cision of the appealing state, the decision to be without effect during 
the appeal, it would be sufficient to remark, that this extra-constitu- 
tional course might well give way to that marked out by the constitu- 



222 

tion, which authorizes two thirds of the states to institute and three 
fourths to effectuate an amendment of the constitution, establishing a 
permanent rule of the highest authority, in place of an irregular pre- 
cedent of construction only. 

But it is understood that the nullifying doctrine imports that the 
decision of the state is to be presumed valid, and that it overrules the 
law of the United States, unless overruled by three fourths of the 
states. 

Can more be necessary to demonstrate the inadmissibility of such 
a doctrine, than that it puts it in the power of the smallest fraction 
over one fourth of the United States, that is, of seven states out of 
twenty-four, to give the law and even the constitution to seventeen 
states, each of the seventeen having as parties to the constitution, an 
equal right with each of the seven, to expound it, and to insist on the 
exposition ? That the seven might, in particular instances be right, 
and Jhe seventeen wrong, is more than possible. But to establish a 
positive and permanent rule giving such a power, to such a minority, 
over such a majority, would overturn the first principle of free govern- 
ment, and in practice necessarily overturn the government itself. 

It is to be recollected that the constitution was proposed to the peo- 
ple of the states as a whole, and unanimously adopted by the states as 
a lohole, it being a part of the constitution that not less than three 
fourths of the states should be competent to make any alteration in 
what had been unanimously agreed to. So great is the caution on 
this point, that in two cases where peculiar interests were at stake, a 
proportion even of three fourths is distrusted, and unanimity required 
to make an alteration. 

When the constitution was adopted as a whole, it is certain that 
there were many parts, which, if separately proposed, would have 
been promptly rejected. It is far from impossible, that every part of 
a constitution might be rejected by a majority, and yet taken together 
as a whole be unanimously accepted. Free constitutions will rarely 
if ever be formed, without reciprocal concessions; without articles 
conditioned on and balancing each other. Is there a constitution of 
a single state out of the twenty-four that would bear the experiment 
of having its component parts submitted to the people and separately 
decided on? 

What the fate of the constitution of the United States would be if 
a small proportion of the states could expunge parts of it particularly 
valued by a large majority, can have but one answer. 

The difficulty is not removed by limiting the doctrine to cases of 
construction. How many cases of that sort, involving cardinal provi- 
sions of the constitution have occurred? How many now exist? 
How many may hereafter spring up? How many might be inge- 
niously created, if entitled to the privilege of a decision in the mode 
proposed ? 

Is it certain that the principle of that mode would not reach further 
than is contemplated. If a single state can of right require three 
fourths of its co-states to overrule its exposition of the constitution, 
because that proportion is authorized to amend it, would the plea be 



223 

less plausible that, as the constitution was unanimously established, it 
ought to be unanimously expounded 1 

The reply to all such suggestions seems to be unavoidable'and irre- 
sistible; that the constitution is a compact, that its text is to be ex- 
pounded according to the provisions for expounding it — making a part 
of the compact ; and that none of the parties can rightfully renounce 
the expounding provision more than any other part. When such a 
right accrues, as may accrue, it must grow out of abuses of the com- 
pact releasing the sufferers from their fealty to it. 

In favor of the nullifying claim for the states, individually, it ap- 
pears as you observe, that the proceedings of the legislature of Vir- 
ginia, in '98 and '99, against the alien and sedition acts, are much 
dwelt upon. 

It may often happen, as experience proves, that erroneous construc- 
tions not anticipated, may not be sufficiently guarded against, in the 
language used ; and it is due to the distinguished individuals, who 
have misconceived the intention of those proceedings, to suppose that 
the meaning of the legislature, though well comprehended at the 
time, may not now be obvious to those unacquainted with the con- 
temporary indications and impressions. 

But it is believed that by keeping in view the distinction between 
the governments of the states, and the states in the sense in which 
they were parties to the constitution ; between the rights of the par- 
ties, in their concurrent and in their individual capacities ; between 
the several modes and objects of interposition against the abuses of 
power, and especially between interpositions within the purview of 
the constitution, and interpositions appealing from the constitution to 
the rights of nature paramount to all constitutions ; with an intention, 
always of explanatory use, to the views and arguments which were 
combatted, the resolutions of Virginia, as vindicated in the report on 
them, will be found entitled to an exposition, showing a consistency 
in their parts, and an inconsistency of the whole with the doctrine 
under consideration. 

That the legislature could not have intended to sanction such a 
doctrine, is to be inferred from the debates in the house of delegates, 
and from the address of the two houses to their constituents, on the 
subject of the resolutions. The tenor of the debates, which were 
ably conducted, and are understood to have been revised for the press 
by most, if not all, of the speakers, discloses no reference whatever 
to a constitutional right in an individual state, to arrest by force the 
operation of a law of the United States. Concert among the states 
for redress against the alien and sedition laws, as acts of usurped 
power, was a leading sentiment ; and the attainment of a concert, the 
immediate object of the course adopted by the legislature, which was 
that of inviting the other states " to concur in declaring the acts to 
be unconstitutional, and to co-operate by the necessary and proper 
measures in maintaining unimpaired the authorities, rights and liber- 
ties reserved to the states respectively and to the people."* That by 



See the concluding resolution of 1798. 



224 

the necessary and proper measures to be concurrently and co-operatively 
taken, were meant measures known to the constitution, particularly 
the ordinary control of the people and legislatures of the states, over 
the government of the United States, cannot be doubted ; and the in- 
terposition of this control, as the event showed, was equal to the oc- 
casion. 

It is worthy of remark, and explanatory of the intentions of the 
legislature, that the words " not law, but utterly null, void and of no 
force or effect," which had followed, in one of the resolutions, the 
word " unconstitutional," were struck out by common consent. — 
Though the words were in fact but synonymous with " unconstitu- 
tional ;" yet to guard against a misunderstanding of this phrase as 
more than declaratory of opinion, the word " unconstitutional" alone 
was retained, as not liable to that danger. 

The published address of the legislature to the people, their con- 
stituents, affords another conclusive evidence of its views. The ad- 
dress warns them against the encroaching spirit of the general go- 
vernment, argues the unconstitutionality of the alien and sedition 
acts, points to other instances in which the constitutional limits had 
been overleaped ; dwells upon the dangerous mode of deriving power 
by implication ; and in general presses the necessity of watching over 
the consolidating tendency of the federal policy. But nothing is said 
that can be understood to look to means of maintaining the rights of 
the states, beyond the regular ones, within the forms of the constitu- 
tion. 

If any further lights on the subject could be needed, a very strong 
one is reflected in the answers to the resolutions, by the states which 
protested against them. The main objection of these, beyond a few 
general complaints of the inflammatory tendency of the resolutions, 
was directed against the assumed authority of a state legislature to 
declare a law of the United States unconstitutional, which they pro- 
nounced an unwarrantable interference with the exclusive jurisdiction 
of the supreme court of the United States. Had the resolutions been 
regarded as avowing and maintaining a right, in an individual state, 
to arrest, by force, the execution of a law of the United States, it 
must be presumed that it would have been a conspicuous object of 
their denunciation. 

With cordial salutations, 

JAMES MADISON. 



225 

Mr. Madison to Mr. Ingersoll. 

Montpelier, Feb. 2, 1831. 
Dear Sir, 

I have received your letter of January 21, asking — 

1. Is there any state power to make banks? 

2. Is the federal power, as has been exercised, or as proposed to be 
exercised by president Jackson, preferable? 

The evil which produced the prohibitory clause in the constitution 
of the United States, was the practice of the states in making bills of 
credit, and in some instances appraised property " a legal tender." If 
the notes of state banks, therefore, whether chartered or unchartered, 
be made a legal tender, they are prohibited ; if not made a legal ten- 
der, they do not fall within the prohibitory clause. The number of 
the " Federalist" referred to was written with that view of the sub- 
ject; and this, with probably other cotemporary expositions, and the 
uninterrupted practice of the states in creating and permitting banks 
without making- their notes a legal tender, would seem to be a bar to 
the question, if it were not inexpedient now to agitate it. 

A virtual and incidental enforcement of the depreciated notes of 
state banks, by their crowding obt a sound medium, though a great 
evil, was not foreseen ; and if it had been apprehended, it is question- 
able whether the constitution of the United States which had so many 
obstacles to encounter, would have ventured to guard against it by an 
additional provision. A virtual, and it is hoped, an adequate remedy, 
may hereafter be found in the refusal of state paper when debased, in 
any of the federal transactions, and in the control of the federal bank, 
this being itself controlled from suspending its specie payments by the 
public authority. 

On the other question I readily decide against the project recom- 
mended by the president. Reasons more than sufficient appear to 
have been presented to the public, in the reviews and other comments 
which it has called forth. How far a hint for it may have been taken 
from Mr. Jefferson, I know not. The kindred ideas of the latter may 
be seen in his memoirs, &,c. vol. 4, pages 196, 207, 526, and his view 
of the state banks, vol. 4, pages 199, 220. 

There are sundry statutes of Virginia prohibiting the circulation of 
notes payable to bearer, whether issued by individuals or unchartered 
banks. 

These observations, little new or important as they may be, would 
have been promptly furnished but for an indisposition in which your 
letter found me, and which has not yet entirely left me. I hope this 
will find you in good health, and you have my best wishes for its con- 
tinuance, and the addition of every other blessing. 

JAMES MADISON. 
Charles J. Ingersoll, esq. Harrisburg, Pa. 
29 



226 

Mr. Madison to Mr. lngersoll. 

Montpelier, June 25, 1831. 
Dear Sir, 

I have received your friendly letter of the 18th inst. The 
few lines which answered your former one of the 21st of January last, 
were written in haste and in bad health: but they expressed, though 
without the attention in some respects due to the occasion, a dissent 
from the views of the president, as to a bank of the United States and 
a substitute for it; to which I cannot but adhere. The objections to 
the latter have appeared to me to preponderate greatly over the advan- 
tages expected from it, and the constitutionality of the former I still 
regard as sustained by the considerations to which I yielded in giving 
my assent to the existing bank. 

The charge of inconsistency between my objection to the constitu- 
tionality of such a bank in 1791, and my assent in 1817, turns on the 
question, how far legislative precedents, expounding the constitution, 
ought to guide succeeding legislatures, and to overrule individual 
opinions. 

Some obscurity has been thrown over the question, by confounding 
it with the respect due from one legislature to laws passed by prece- 
ding legislatures. But the two cases are essentially different. A con- 
stitution being derived from a superior authority, is to be expounded 
and obeyed, not controlled or varied by the subordinate authority of a 
legislature. A law on the other hand, resting on no higher authority 
than that possessed by every successive legislature, its expediency as 
well as its meaning is within the scope of the latter. 

The case in question has its true analogy in the obligation arising 
from judicial expositions of the law on succeeding judges ; the consti- 
tution being a law to the legislator, as the law is a rule of decision to 
the judge. 

And why are judicial precedents, when formed on due discussion 
and consideration, and deliberately sanctioned by reviews and repeti- 
tions, regarded as of binding influence, or rather of authoritative force, 
in settling the meaning of a law? It must be answered, 1st. because 
it is a reasonable and established axiom, that the good of society re- 
quires that the rules of conduct of its members should be certain and 
known, which would not be the case if any judge, disregarding the 
decisions of his predecessors, should vary the rule of law according 
to his individual interpretation of it. Misera est servitus ubi jus est 
aut vagum aut incognitum. 2d. Because an exposition of the law 
publicly made, and repeatedly confirmed by the constituted authority, 
carries with it, by fair inference, the sanction of those who, having 
made the law through their legislative organ, appear under such cir- 
cumstances to have determined its meaning through their judiciary 
organ. 

Can it be of less consequence that the meaning of a constitution 
should be fixed and known, than that the meaning of a law should be 
so? Can indeed a law be fixed in its meaning and operation, unless 
the constitution be so? On the contrary, if a particular legislature, 



227 

differing in the construction of the constitution, from a series of pre- 
ceding constructions, proceed to act on that difference, they not only 
introduce uncertainty and instability in the constitution, but in the 
laws themselves; inasmuch as all laws preceding the new construc- 
tion and inconsistent with it, are not only annulled for the future, but 
virtually pronounced nullities from the beginning. 

But it is said that the legislator having sworn to support the consti- 
tution, must support it in his own construction of it, however different 
from that put on it by his predecessors, or whatever be the conse- 
quences of the construction. And is not the judge under the same 
oath to support the law? yet has it ever been supposed that he was 
required, or at liberty to disregard all precedents, however solemnly 
repeated and regularly observed ; and by giving effect to his own ab- 
stract and individual opinions, to disturb the established course of 
practice in the business of the community'? Has the wisest and most 
conscientious judge ever scrupled to acquiesce in decisions in which 
he has been overruled by the mature opinions of the majority of his 
colleagues, and subsequently to conform himself thereto, as to autho- 
ritative expositions of the law? And is it not reasonable that the 
same view of the official oath should be taken by a legislator, acting 
under the constitution, which is his guide, as is taken by a judge, act- 
ing under the law, which is his? 

There is in fact and in common understanding, a necessity of re- 
garding a course of practice, as above characterised, in the light of a 
legal rule of interpreting a law: and there is a like necessity of con- 
sidering it a constitutional rule of interpreting a constitution. 

That there may be extraordinary and peculiar circumstances con- 
trolling the rule in both cases, may be admitted : but with such ex* 
ceptions, the rule will force itself on the practical judgment of the 
most ardent theorist. He will find it impossible to adhere to, and act 
officially upon, his solitary opinions as to the meaning of the law or 
constitution, in opposition to a construction reduced to practice, du- 
ring a reasonable period of time ; more especially where no prospect 
existed of a change of construction by the public or its agents. And 
if a reasonable period of time, marked with the usual sanctions, would 
not bar the individual prerogative, there could be no limitation to its 
exercise, although the danger of error must increase with the increas- 
ing oblivion of explanatory circumstances, and with the continual 
changes in the import of words and phrases. 

Let it then be left to the decision of every intelligent and candid 
judge, which, on the whole, is most to be relied on for the true and 
safe construction of a constitution, that which has the uniform sanc- 
tion of successive legislative bodies through a period of years, and 
under the varied ascendancy of parties ; or that which depends upon 
the opinions of every new legislature, heated as it may be by the spi- 
rit of party, eager in the pursuit of some favorite object, or led astray 
by the eloquence and address of popular statesmen, themselves, per- 
haps, under the influence of the same misleading causes. 

It was in conformity with the view here taken, of the respect due 
to deliberate and reiterated precedents, that the bank of the United 
States, though on the original question held to be unconstitutional, re- 



228 

ceived the executive signature in the year 1817. The act originally 
establishing a bank had undergone ample discussions in its passage 
through the several branches of the government. It had been car- 
ried into execution throughout a period of twenty years with annual 
legislative recognitions; in one instance indeed, with a positive rami- 
fication of it into a new stale: and with the entire acquiescence of 
all the local authorities, as well as of the nation at large, to all of 
which may be added, a decreasing prospect of any change in the pub- 
lic opinion adverse to the constitutionality of such an institution. A 
veto from the executive under these circumstances, with an admission 
of the expediency and almost necessity of the measure, would have 
been a defiance of all the obligations derived from a course of prece- 
dents amounting to the requisite evidence of the national judgment 
and intention. 

It has been contended that the authority of precedents was in that 
case invalidated by the consideration, that they proved only a respect 
for the stipulated duration of the bank, with a toleration of it until 
the law should expire, and by the casting vote given in the senate by 
the vice president in the year 1811, against a bill for establishing a 
national bank, the vote being expressly given on the ground of un- 
constitutionality. But if the law itself was unconstitutional, the sti- 
pulation was void, and could not be constitutionally fulfilled or tolera- 
ted. And as to the negative of the senate by the casting vote of the 
presiding officer, it is a fact well understood at the time, that it re- 
sulted not from an equality of opinions in that assembly on the power 
of congress to establish a bank, but from a junction of those who ad- 
milted the power, but disapproved the plan, with those who denied 
the power. On a simple question of constitutionality, there was a de- 
cided majority in favor of it. 

Mrs. Madison joins me in hoping that you will not fail to make the 
intended visit to Virginia, which promises us the pleasure of welcom- 
ing you to our domicil, and in a sincere return of all the good wishes 
you kindly express for us. 

JAMES MADISON. 
Mr. Ingcrsoll. 






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